PARLIAMENTARY DEBATE
Employment Rights Bill (Ninth sitting) - 10 December 2024 (Commons/Public Bill Committees)

It is a pleasure to see you in the Chair this morning, Mr Mundell. As is customary, I refer to my declaration in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions.

As Members will be aware, clause 10 introduces new requirements on tipping, namely the requirements for employers to consult workers about the allocation of the tips they have earned, and to review their tipping policy. These new requirements will build on the measures introduced by the previous Government in the Employment (Allocation of Tips) Act 2023. The Act came fully into effect on 1 October this year and ensured that an estimated £200 million-worth of tips each year are no longer retained by employers.

The Act is accompanied by a statutory code of practice on the fair and transparent distribution of tips. Although the Act requires employers to allocate tips fairly to workers, the existing statutory code of practice only encourages consultation with workers in deciding that allocation. The Government were clear in their commitment to going further—indeed, I took part in a debate earlier this year in which I said that the legislation did not go far enough. We will therefore make it mandatory for employers to consult workers in developing or updating their tipping policies, including how tips are allocated.

The clause will support worker participation in the allocation and distribution of tips that they have earned, by mandating that employers consult workers during the development or revision of their written tipping policies. It will also mandate that employers review their tipping policy and maintain records of the consultation they have carried out, as well as giving workers the right to request and review records related to the tipping policy consultation. The consultation will be required to take place at the formative stage, before the policy is finalised or updated, and should be carried out, where possible, by engaging with representatives of recognised trade unions or other chosen representatives. If neither are available, the consultation will be required to be with workers likely to be affected.

We will continue to engage with unions and worker representatives in hospitality and other impacted industries to ensure that the measures in the Bill and in the statutory guidance deliver fully on our aims. Following Royal Assent, we will consult widely and properly with stakeholders to determine what changes should be made to the existing statutory code of practice. We are determined to ensure that guidance is as helpful as possible, ensuring that tips are allocated fairly and that worker consultation is carried out properly.

These measures will be enforced via the employment tribunal system. If an employer fails to consult their workers properly or to distribute tips in a fair and transparent manner, workers will be able to bring a claim to an employment tribunal. The tribunal will be able to order an employer to compensate workers up to £5,000 for financial loss. I think that Members can see what we are trying to achieve with the clause, and I therefore commend it to the Committee.

It is a pleasure to serve under your chairmanship once more, Mr Mundell. The Minister mentioned that the clause builds on private Member’s legislation passed in the last Parliament, and it would be remiss of me not to put on record that the transformation in some employers’ attitudes to their employees and to the retention and fair distribution of tips was in large part down to the former Conservative Member for Watford, Dean Russell, who piloted the original legislation through the House. There were one or two little bumps along the road as he came into ministerial office and then out again in—what was the number?—43 days, but many Conservative colleagues really pushed for the legislation. It is one of those great unfairnesses that, for years, incredibly hard-working people in the hospitality sector and others had an expectation that they would receive the generosity of their customers’ tips at the end of the meal, the round of drinks or whatever but, for various reasons, did not get their fair share. The legislation the Minister referred to righted that historic wrong, and clause 10, which seeks to strengthen that, is very welcome.

Where I gently suggest to the Minister that there needs to be a little more thought and clarity is settings where there is no union to consult. That might be a small business such as a restaurant or pub, where the people who work there are not affiliated with any union or body that could be consulted on their behalf. Will he say something about how those smaller businesses—smaller restaurant or pub settings—will get dialogue going with their employees so that the business has a fair and equitable, and clear and unambiguous policy to ensure that the tips reach those workers?

It is a pleasure to serve under your chairmanship, Mr Mundell. I just emphasise what the hon. Member for Mid Buckinghamshire stated in respect of smaller settings. In my constituency there are lots of restaurants and small hotels without the network of support for workers that a trade union would offer. It would be useful if Ministers were alive to the circumstances of those smaller settings. I also wonder whether the Minister is reflecting on what guidance he might issue on the question of what is equitable that could be reflected if people end up going to a tribunal.

I draw attention to my declaration in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions. I noticed last week that the Prime Minister made a James Bond joke, and I wondered whether he was following the Committee’s proceedings in real time. There is a valid question here: when James Bond buys a vodka martini, what happens to the tips? Hopefully, thanks to this Bill and the legislation passed last year, we will have a more equitable solution.

I want quickly to raise two issues. The “Make Work Pay” document published earlier this year stated:

“Labour will strengthen the law to ensure hospitality workers receive their tips in full and workers decide how tips are allocated.”

I would be interested in the Minister’s views on whether this measure meets that very welcome commitment. Whether tips that would have been received during shifts that are cancelled fall under the definition of reasonable compensation is presumably a question to be addressed in the future.

In respect of the points raised by the hon. Members for Torbay and for Mid Buckinghamshire about consultation with groups of workers who are not represented by a trade union, I suggest that the kinds of businesses they mentioned should have at least a degree of familiarity with the principles of that, since they are established and well understood in the context of redundancy situations and in other areas.

First, I will acknowledge, as did the shadow Minister, the hon. Member for Mid Buckinghamshire, the work in this area by previous Members of this place, including the former Member for Ynys Môn. I think it was seven years after the announcement that there was to be legislation that we finally got action, but it is welcome. I note the shadow Minister’s comment that the legislation has transformed attitudes, and that is what we are trying to do with this Bill in general: transform the workplace so that workers have better security and a better voice.

The shadow Minister raised some important questions, as did the Liberal Democrat spokesperson, the hon. Member for Torbay, about what this measure means for smaller businesses where there may not be a trade union. Of course, that is an argument for greater organisation in the workplace so that employers can consult collectively with the workforce. Those smaller employers—the Great British café, for example—would not always have an easy route to consult with their workforce, but in that kind of informal setting, where there is only a handful of employees, it should be fairly straightforward. Everyone will know their role and what goes on, and the existing code of practice deals with the guidance for smaller employers in that sense.

My hon. Friend the Member for Birmingham Northfield asked whether this measure meets our commitments under “Make Work Pay”, and I believe it does. It is a significant step in continuing the welcome, transformational moves that we have seen on tips, and it gives workers an absolute right to be consulted, which I think is important. There is evidence, such as the research by the Chartered Institute of Personnel and Development, that certain sections of the workforce, including agency workers and people working in certain parts of a business, feel that they do not have a voice. This provision will give them that voice and the real teeth they need to ensure that tips are fairly distributed. As the shadow Minister said, this is all about them. It is about ensuring that everyone who contributes to the service that we all enjoy gets those tips, which the customer clearly wants to ensure are spread among the workforce. On that note, I commend the clause to the Committee.

Clauses 11 and 12 enable employed parents to give notice of their intention to take parental leave or paternity leave from their first day in a new job. Clause 11 does that for parental leave by amending section 76 of the Employment Rights Act 1996 to remove the power for the Secretary of State to make regulations relating to the duration for which an employee must be employed before being entitled to be absent from work on parental leave. Clause 12 works in a similar manner for paternity leave, amending sections 80A and 80B of the Employment Rights Act 1996 to remove the power for the Secretary to make regulations relating to the duration for which an employee must be employed before being entitled to take paternity leave.

Currently, parents must complete one year of continuous service to qualify for parental leave, and 26 weeks of continuous service to qualify for paternity leave. Clause 11 will make an additional 1.5 million parents each year eligible for parental leave, while clause 12 will bring an additional 32,300 fathers and partners a year into scope for paternity leave. Clauses 11 and 12 will make it easier for employees to move jobs, which may enable them to secure wage increases without losing their ability to take parental leave or paternity leave. Removing deterrents to changing jobs is important, because research by the Office for National Statistics and the Resolution Foundation shows that people who move jobs are likely to get wage increases.

There is also a benefit from our changes to employers, who will gain access to a larger pool of applicants for vacancies, as parents will be more likely to apply for new jobs because they will not lose their access to those leave entitlements. We have engaged with stakeholders who represent the interests of parents, and they have said that they welcome the removal of continuity of service for parental and paternity leave. Making those entitlements available from day one also brings parental and paternity leave into line with other entitlements, such as maternity and adoption leave, creating a clearer and fairer system.

New clause 16 would commit the Government to introducing regulations that require organisations employing more than 250 people to publish information about their parental leave and pay policies. The hon. Member for Torbay is right to highlight the significance of publishing parental leave policies. It is certainly true that parental leave and pay policies are not perks on a par with gym memberships; they are critical policies that allow people to manage their lives. As well as being hugely important at a personal level, parental leave and pay policies are critical for addressing wider social and economic issues.

The Bill already does a lot to support working families. It reforms the right to request flexible working to make it the default. It puts in place legislation that makes it unlawful to dismiss pregnant women, mothers on maternity leave and mothers who return to work for a six-month period after they return, except in very specific circumstances. It also requires large employers to produce equality action plans. That is why at this point we believe that not requiring publication of parental policies in the Bill is the correct approach. It strikes the right balance between doing more to help working families and being manageable for employers to respond and adapt to.

New clause 17 would increase the length of paternity leave from two weeks to six weeks and also seeks to introduce the ability to take paternity leave at any time in the first year following birth or adoption. The Government value the vital role that fathers and partners play in caring for children and supporting their partners. We recognise that parental leave and pay entitlements, such as paternity leave and pay, play a key role in their ability to do that. That is why we are taking the first step of making paternity and parental leave day one rights.

Recent changes to paternity leave and pay, which took effect on 6 April 2024, allow parents to take their leave and pay in two non-consecutive weeks; to take their leave and pay at any point in the first year after the birth or adoption of their child, rather than only within the first eight weeks; and to give shorter notice for each period of leave. That means that parents are now able to take their paternity leave at any point in the first year following their child’s birth or adoption. While I very much support the intent behind this element of the new clause tabled by the hon. Member for Torbay, it is already in place and so is not required.

If fathers or partners wish to take a longer period of leave and pay, shared parental leave and pay is an option they can consider. Up to 50 weeks of leave and up to 37 weeks of pay can be “created” for parents to share from maternity entitlements that the mother does not intend to use. Parents can use the scheme to take leave together for up to six months or to intersperse periods of leave with periods of work.

We know that more needs to be done to ensure that the parental leave system provides the best possible support for working families. That is why we have committed to a review of the parental leave system. The review will be conducted separately to the Bill and work is already under way across Government on planning for its delivery. I therefore commend clauses 11 and 12 to the Committee and invite the hon. Member for Torbay not to move new clauses 16 and 17.

Planned fire alarms are always quite disturbing, but never mind. I will broadly address the subject we are debating, before making specific comments on the new clauses tabled by the Liberal Democrats. I do not have a direct interest to declare, but I have had paternity leave three times in my life. I value its provision and the importance of ensuring that fathers and partners are there to support mothers in the early days of a new child arriving in the world. Paternity leave is incredibly important, at any point when it arrives. For my second child, I had only been an MP for four weeks after the 2019 general election, when I disappeared for two weeks. That was vital to support my wife, who had valiantly gone through a general election with me while she was eight months pregnant. Of course, she was not pounding the streets in the way most of us were at that point, but I just wanted to give that personal reflection on how important paternity leave is.

Will the hon. Member give way?

I will just finish this thought; the hon. Lady knows that I am not shy about taking interventions. Every business, even if it has only one or two employees, will know what the plan is if one of its employees comes to it and says that their wife, partner or whatever is pregnant and that they will require at some point in the near future two weeks of paternity leave. On the grounds that virtually every business that I know has that plan—has that understanding of what it will do in offering the statutory requirement for paternity leave and the way it will remunerate it or not, as the case may be—I am struggling to understand why it should be only those companies with more than 250 employees that are subject to the requirement.

The reason for leaving it at 250 employees, despite a thought among Opposition Members that it should be extended to 500, is that, currently, small and medium-sized businesses are classified as having up to 249 employees. Larger businesses, which will undoubtedly have the infrastructure, should be able to publish the information. The new clause would prevent an onerous burden on very small businesses from having to publish the information. It does not imply that they would have lesser standards; it is merely that they would not be obliged to publish the information.

I understand the point that the hon. Lady makes. I am the last person to want to put a greater burden or unnecessary burden on any form of business. All I gently suggest is that this probably is not that great a burden on a business, on the grounds that it will already know what it is going to do when an employee comes and asks for paternity leave, maternity leave or whatever. That is particularly the case given that much of the rules and regulations is already set in statute and, when this Bill undoubtedly achieves Royal Assent at some point, will be further enshrined in statute. There are many other regulations that businesses have to comply with when publishing on their website—I am thinking of privacy notices and various GDPR regulations and so on—just as all the members of this Committee and Members of this House have to do on our own websites. I do not think anyone would try to define any of us as large businesses or huge employers, and I do not think that there are any hon. or right hon. Members left who do not have a website. Perhaps one or two do not—

Jacob has gone, hasn’t he?

He is a fine television superstar these days.

All of us will have published these statements on our websites, because that is straightforwardly set out in statute—straightforwardly set out in law. I am at a loss to understand why it would be a burden for a business of any size to do that, but I am mindful that we do not want to overburden businesses. I accept the explanation given by the hon. Member for Chippenham.

Turning to new clause 17, I would have loved to have six weeks of paternity leave when my three children were born. When my first child was born, I was still self-employed. It was before my election to this place, so the time I took off in 2016 was entirely unpaid because I just had to forgo client work, but it was important to do that.

I am slightly concerned that, as desirable as six weeks would be, it is too great a burden for businesses automatically to have to shoulder. Some good and generous employers may well find a way of offering it in one way or another, paid or otherwise. However, to go beyond the current entitlement of two weeks, which can be split up, as the Minister mentioned, seems to be too big an ask for some businesses, desirable though it may be for fathers to be able be there with their new child in the most precious early days of life to support the mother and the child. I gently invite Liberal Democrat Members to reflect on whether six weeks is realistic for every business.

As a state, we need to reflect on what makes up our society. Often, it is family units. Whether that is the quintessential family of two parents and two children or something similar, supporting the family unit is absolutely essential. I suggest that the two new clauses are about supporting families. New clause 17 allows both partners to engage. Both my lads are now grown up. It is not just about the link with the child; it is about supporting the partnership of the couple—whatever form that couple happens to be—in bringing up the child. Extending leave entitlements would strengthen that bond. The impact of broken families on youngsters can be very profound, and we are strengthening families through these proposals. We will not push the new clauses to a vote, but we stand by them and believe in them wholeheartedly.

It is a pleasure to serve under your chairmanship, Mr Mundell. I would like to ask the Minister if he could—

Sorry. I ask her whether she could advise on what analysis the Government have done on the likely cost to small businesses of making maternity-paternity shared parental leave a day one right. Although I agree that these are important rights for parents, I wonder what analysis has been done. I am concerned for small businesses, such as those with only one or two employees. If they were to take on a new employee, they could immediately find that they have to grant leave and pay, as well as find a substitute worker. I fully accept the importance of these rights, but is the Minister satisfied that it is appropriate to impose those burdens on small businesses, particularly given the other burdens in the Bill, the national insurance charges in the Budget and all other manner of taxes and impositions that the Government are introducing?

Let me address that last point first. We have had engagement with stakeholders who represent families, such as Pregnant Then Screwed and Maternity Action, which has shown that they welcome the removal of continuity of service for paternity leave. We can all understand the benefits that that brings in terms of people being able to apply for new jobs and move to better-paid jobs. While the change will have a cost to businesses, it is estimated to be relatively small, at £6.2 million a year, and we believe that the positive impact on families will be much larger. This clause will make 10,000 more fathers and partners eligible for paternity leave, including those with low job security, who are most likely not to meet the current qualifying requirements. I remind the Committee that it is often those people in the most transitory jobs who have the most precarious financial positions and the least opportunity to spend time with their families.

I will address the comments made by the Liberal Democrat Front-Bench spokesman, the hon. Member for Torbay. We are making immediate changes to paternity leave through this Bill. We will make paternity leave available from day one in a new job and enable paternity leave to be taken after shared parental leave. The flexibility that this will give rise to will enable employees to move towards better-paid employment without the fear of losing their right to protected time away to be with their families. We have also committed to review the entire parental leave system to ensure that it best supports families. As I mentioned earlier, that is already in progress across the Government.

I will make a small technical point. The effect of new clause 17 is that fathers and partners who are eligible for paternity leave would be entitled to six weeks of leave, adding four weeks to the existing two weeks offered by the current paternity leave entitlement. The new clause would not affect the entitlement window in which fathers and partners need to take their paternity leave, as this was extended from 56 days to 52 weeks in April 2024. However, the change to enable paternity leave to be taken over 52 weeks was made in secondary legislation. The new clause would make this change in primary legislation, which would mean that it would not be possible to make any future changes to the period in which a parent could take parental leave in secondary legislation. On that note, I commend clauses 11 and 12 to the Committee.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.

Clause 13

Ability to take paternity leave following shared parental leave

Question proposed, That the clause stand part of the Bill.

The point of clause 13 is to give employed fathers, partners and secondary adopters, including those who have their children through a surrogacy arrangement, the ability to take paternity leave and pay after taking shared parental leave and pay. The clause amends the Employment Rights Act 1996 by removing the limitation that prevents fathers and partners from taking paternity leave and pay after shared parental leave and pay. In April 2024, changes were made to paternity leave and pay, enabling it to be taken at any time in the first year following a child’s birth or adoption. Before then, parents had eight weeks to take their paternity leave and pay. That change means that parents are now more likely to take their paternity leave and pay after their shared parental leave and pay, as they now have more time to take their paternity leave and pay. Removing that restriction creates more flexibility for parents and means that parents who choose to take their shared parental leave and pay first will not then lose their ability to take their entitlement to paternity leave and pay.

Currently, if shared parental leave and pay is taken, parents lose any remaining paternity leave and pay entitlements they have not yet used. Removing that restriction creates a more supportive framework for families by allowing greater flexibility in how parents structure their leave, and ensures that they will not inadvertently lose access to the leave and pay they are entitled to.

Certainly there is no objection from the Opposition to the principle of flexibility in ensuring people can have that choice and ability to dictate when leave is taken, particularly in the case of paternity leave. I can think of many examples, including colleagues from the previous Parliament. I acted as the proxy vote for one of them while they were on paternity leave. They pushed that back slightly—the obscurities of this place—to ensure that their paternity leave did not marry up with recess. However, there will be many other reasons and flexibilities that people require away from the eccentricities of working in this place.

I ask the Minister to reflect on whether, within that framework of flexibility, which in its own right is a good thing, there needs to be any secondary guidance or advice to businesses on what might turn out to be some very rare but foreseeable circumstances where employees or individuals push the boundaries a bit too far with their employers. and on what to do in those extreme cases. That is not to detract in any way, shape or form from the principle of flexibility, but I ask whether there is a requirement for guidance notes or Government advice, however it is formed, to give employers a bit of a safety net if, in one or two cases, those boundaries be pushed a bit too far.

Given the Liberal Democrat new clauses we discussed earlier, it is clear that we welcome any flexibility that encourages paternity leave and allows parents to share the leave in an equal and welcoming way. Therefore, we welcome this clause.

In response to the point made by the hon. Member for Mid Buckinghamshire, there are clearly defined time limits, and I am sure that most employers and employees will manage to work this out. I just point out gently that the impact assessment on these provisions received a green rating, so some work has been done on this. I remind Members that we are undertaking a wider review as well in respect of paternity and parental leave.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14

Bereavement leave

Question proposed, That the clause stand part of the Bill.

Clause 14 establishes a new day one right to bereavement leave. The loss of a loved one is a deeply personal experience, and a sad reality that almost all of us will experience. When that happens, the grief that comes with a loss will impact us all in different ways. Some individuals may need time and space away from other demands, including work, to begin to process their loss. Others may prefer to keep working to maintain a sense of familiarity while adjusting to a new normal. Thankfully, for those who need it, the majority of employers respond compassionately to requests for time away from work, and recognise the key role they can play in supporting their employees during this time. In the absence, however, of a statutory right, not all employees may be afforded the time off they need to grieve. We estimate that this would benefit at least 900,000 workers each year. That is a significant proportion of the working population who will be able to access bereavement leave from day one of employment.

Currently, the only bereavement entitlement in legislation is parental bereavement leave, which provides two weeks of leave for parents who experience the devastating loss of their child, from 24 completed weeks of pregnancy until the child reaches the age of 18. That is set out in sections 80EA to 80EE of the Employment Rights Act 1996 and in the Parental Bereavement Leave Regulations 2020. Subsections (2) and (3) of clause 14 amend those sections of the 1996 Act, so that the duty on the Secretary of State to lay regulations establishing parental bereavement leave is widened to require regulations providing for bereavement leave for other loved ones as well.

The amendments in subsection (3) ensure that the regulations, in the case of the new bereavement entitlement, must set out the following: first, the eligibility of the new entitlement by definition of the employee’s relationship to the deceased; secondly, the length of leave, which must be a minimum of one week; thirdly, when the leave must be taken, which must be before the end of at least 56 days after the person’s death; and finally, how the leave is to be taken, such as in one block or two blocks, or whatever is appropriate.

Should an employee suffer multiple bereavements, the clause sets out that they are entitled to leave in respect of each person who has passed away. The approach to regulations mirrors that taken when establishing parental bereavement leave and allows similar provisions to be included in the new regulations. Due to the sensitive and personal nature of bereavement, we will consult stakeholders on the details to be set out in regulations to ensure that the entitlement is constructed with the needs of employees and employers at the forefront.

Subsections (4) to (11) make amendments to other provisions of the 1996 Act to enable the regulations to provide important protections for employees who take bereavement leave, such as protection against detriment, protection of contractual rights, and protection for treating a dismissal that takes place for a reason relating to bereavement leave as unfair.

Subsections (12) to (13) make consequential amendments to His Majesty’s Treasury legislation to provide for how persons on bereavement leave are to be taken into account when assessing an employee’s “committed time” or the number of employees for the purpose of certain initiatives or schemes, in the same way as other family-related entitlements. Subsection (14) makes consequential amendments to the Parental Bereavement (Leave and Pay) Act 2018 to remove provisions that no longer have any effect following the amendments made by clause 14 of this Bill.

I am grateful to the Minister for her explanation of clause 14. It is quite clear on a purely human level that bereavement can strike any family and any individual, often with zero notice or ability to plan, and it is therefore a basic tenet of humanity that we would all expect employers to be sensitive, generous and sympathetic to any employee who finds themselves in that position. For the record, it is certainly my experience that the vast majority of businesses and employers show compassion, sensitivity and generosity to ensure that anybody who is bereaved has the time, space and freedom to be able to grieve, plan for things such as funerals and start the very hard process of not just saying goodbye to that loved one, but putting various affairs in order, such as registering the death. People have to go through a high burden of bureaucracy when they find themselves in that position.

The core principle of the proposals is fundamentally a good one, and does not warrant opposition. However, there is an area that I think needs a little more debate and potentially some refinement. The Minister spoke about the need to consult and to get these regulations right, and it is important that we do that. I do not in any way oppose the principle of the proposals, but I gently suggest that perhaps it would have been better to do the consultation first, so that this could have been clearer in the legislation as it goes forward. I repeat, however, that I say that not to distract from the good principle that sits underneath these regulations.

I ask the Minister to reflect further on the point from the evidence session about bereavement leave being available to parents who have lost their child after 24 weeks of pregnancy. There are many people who suffer the loss of a pregnancy before 24 weeks. That is one of the most heartbreaking things for mothers, fathers and wider families, and it happens every single day up and down the land. After all the joy, excitement and future planning that go into any mother’s, father’s and family’s life when they find out that they are expecting a child, the often very sudden news that that pregnancy has not made it comes as a huge shock, often with no notice.

There are things that a family, a mother, a father, will go through when they find out that that pregnancy has not been viable and has sadly ended under 24 weeks, including being taken to a small room and being asked the direct question—which, I assure the Committee makes the ears prick up and the reality of what has just happened come into sharp focus—about whether you wish to attend the burial of that failed pregnancy. That brings into sharp focus that you are actually being asked to say goodbye to your child. That can happen at any point in a pregnancy; it happened to my wife at about 14 weeks in 2018, and I remember vividly sitting in that room, having to fill out what seemed like the “Yellow Pages”-worth of forms, and reflecting that what should have been our second child was not going to be our second child. That takes some getting over, and it often involves surgery for the mother afterwards.

Although we have no formal amendment on this at this stage—I reserve the right to perhaps revisit it on Report—it is worth the Government reflecting on a genuine cross-party basis whether the 24-week period can be substantially reduced to give time to families who are saying goodbye. I do not want to get into the debates about when is a child a child, but it is devastating for families who go through that experience, and if the Government can find a way to ensure that families facing those circumstances can have some breathing space, so that we do not just have the “Back to work tomorrow, please” mentality that persists in this country, it would be a welcome and positive step. That might yet bring the whole House together and ensure that people have, as I say, space and time to reflect on what has just happened—to grieve, come back together again and then hopefully plan for the future.

After that incredibly moving speech by the hon. Member for Mid Buckinghamshire, I cannot help but share the absolute concerns of friends of mine who have also lost children in pregnancy quite early on. I appreciate that that causes devastation, and I would be very happy to support any amendments that are suggested on Report. Perhaps an earlier date for bereavement would be appropriate.

I, too, thank the hon. Member for Mid Buckinghamshire for sharing such a personal story with us today. As he says, the loss of a child or a baby at any stage is incredibly upsetting. Parents who suffer a stillbirth may be entitled to parental bereavement leave and pay. Although there is no statutory entitlement for miscarriage before 24 weeks, we expect employers to respond with compassion and understanding and encourage employees to discuss the support that they need with their employer. A woman is protected against discrimination in the workplace due to pregnancy, any illness related to pregnancy or absence of that illness. That includes any illness caused by miscarriage extending to two weeks after the end of the pregnancy. After that, the woman is still protected by the Equality Act 2010 sex discrimination protections if she is treated less favourably because she suffered a miscarriage.

Clause 20 will also allow for regulations to be made about dismissal during a protected period of pregnancy, and the enhanced dismissal protection policy will cover women during their pregnancy. I point out that at the moment the Women and Equalities Committee is looking into that and doing an inquiry. We will study the outcome of that very closely as we take our policies forward.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Clause 15

Employers to take all reasonable steps to prevent sexual harassment

Question proposed, That the clause stand part of the Bill.

If I may just correct the record, there was not an impact assessment on clause 13—I inadvertently said that there was—because the impact is so small. But there was on clauses 11 and 12, and they received a rating of green.

I will now speak to clauses 15 to 17, new clauses 29, 39 and 40, and amendments 130, 131 and 135. Clause 15 will strengthen the new duty on employers to take reasonable steps to prevent sexual harassment of their employees, which came into force on 26 October 2024 under the Equality Act 2010. Clause 15 requires that employers must take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take to prevent that. At the same time, the requirement remains limited to steps that are “reasonable”. The amended duty will mirror the existing statutory defence for an employer regarding vicarious liability, which requires them to show that they have taken all reasonable steps to prevent harassment.

The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. This will therefore provide a consistent threshold and decrease uncertainty for all. The Government intend to provide businesses with clear guidance to ensure that they are fully supported in complying with the new legislation.

Clause 16 will introduce an obligation on employers not to permit the harassment of their employees by third parties under section 40 of the Equality Act. As well as employers taking action to prevent sexual harassment, workplaces and working conditions must be free from all forms of harassment. The clause therefore encompasses all three types of harassment set out under section 26 of the Equality Act. As well as sexual harassment, it covers harassment related to a protected characteristic that is covered by the existing harassment provision. It also covers treating someone less favourably because they have either submitted to or rejected sexual harassment, or harassment related to sex or to gender reassignment.

To avoid liability, employers will need to do what is reasonable. What constitutes “all reasonable steps” for third-party harassment will depend on the specific circumstances of the employer. Employers will need to consider the nature of any contact with third parties—for example, the type of third party, the frequency and the environment. In certain sectors, there may be more regular worker interaction with third-party contractors than in others. This amendment to the Equality Act will give much-needed clarity on the rights and responsibilities of employees and employers in these scenarios, and require employers to take action to prevent such harassment from occurring.

The burden of holding perpetrators and employers to account and of driving change is too great to be shouldered alone by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take steps against third-party harassment. That is the right thing to do because tackling misogyny and violence against women and girls is a societal issue in which employers can play a key role. This also means that victims can be confident that they are protected by the law if their employer has not taken all reasonable steps to protect them, and that they are able to take legal action if they so wish. This measure will therefore benefit all employees by making workplaces safer and ensuring that everyone has the same opportunity to succeed at work.

As I said earlier, oral evidence from the Fawcett Society shows that one in five women have been sexually assaulted in the workplace by third parties. These measures could have a positive effect on women, those with disabilities and ethnic minorities across the UK.

Clause 17 introduces a power to make regulations to specify steps that are reasonable for employers to take to prevent sexual harassment. That is to meet the requirements set out in the Equality Act 2010 that employers take all reasonable steps to prevent sexual harassment of their employees. Those are contained in section 40A, the general preventative duty; section 40, as amended by this Bill, to the extent it relates to sexual harassment by third parties; and section 109, employers’ vicarious liability, where that relates to a failure to prevent the sexual harassment. The provisions place broad requirements on employers, but it will be important to ensure that specific steps are taken where the evidence demonstrates that they are proportionate and needed to prevent sexual harassment. The regulations may also require an employer to have regard to specified matters when taking those steps.

The Government have already produced an extensive set of impact assessments, published on Second Reading and based on the best available evidence for the potential impact on business, workers and the wider economy. We intend to refine that analysis over time, working closely with businesses, trade unions, academics, think-tanks and the Regulatory Policy Committee. We will publish an enactment impact assessment once the Bill reaches Royal Assent, in line with the better regulation framework requirements. That will account for where primary legislation in the Bill has been amended in its passage through Parliament in such a way as to change significantly the impacts of the policy on business. That impact assessment will be published alongside the enacted legislation. In addition, we will publish further analysis alongside future consultations ahead of any secondary legislation, to meet our better regulation framework requirements.

No one should fear being sexually assaulted in the workplace, and the measures go further to protect employees. One in five women has been sexually assaulted in the workplace by someone outside their organisation. The measures could have a positive effect on women, those with disabilities, and ethnic minorities across the UK. The amendments and new clauses in this group would not add value, given the extensive impact assessment to which the Government have already committed.

On new clauses 39 and 40, I reassure the Committee that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. We already have in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. Through the Health and Safety at Work etc. Act 1974 and the statutory provisions made under it, employers already have a duty to protect their workers from health and safety risks, including workplace violence, and they must consider ways in which they can remove or reduce such risk. That legislation applies to everyone, irrespective of whether the victims have protected characteristics—it is a law to protect all workers.

The Health and Safety at Work etc. Act, along with associated legislation, requires employers to reduce the risks of workplace violence. As part of that, the Management of Health and Safety at Work Regulations 1999 require employers first to assess the risks in the workplace, including the potential for violence, and then to take appropriate action to reduce those risks. The Health and Safety Executive and local authorities, which are responsible for enforcing the 1974 Act, carry out proactive and reactive work to ensure that employers are complying with their duties under the Act to assess the risks and are implementing appropriate control measures to protect their workers, and others affected by their work, from workplace violence.

The Health and Safety Executive has also published a range of readily available guidance on its website to assist employers in complying with their legal obligations. The right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) has tabled new clause 40, asking the HSE to publish a health and safety framework on violence and harassment in the workplace, including violence against women and girls in the workplace, but employers already have such duties under the 1999 regulations, which require them to have suitable and sufficient arrangements in place to manage health and safety in the workplace, including violence and aggression.

Harassment in the workplace could be covered by the Health and Safety at Work etc. Act, but the HSE does not act where a more appropriate regulator has specific responsibility, or where there is more directly applicable legislation. Police already have powers to prosecute harassment offences under the Protection from Harassment Act 1997, and the Equality and Human Rights Commission can take action under the Equality Act 2010.

There is quite a lot in this grouping, and I will try to go through it in a sensible order. I will start with new clause 29 and amendment 135. The Regulatory Policy Committee has said that the Government have not managed to demonstrate sufficiently the need for the clauses in the Bill that require employers to prevent harassment of their employees by third parties, nor that the measures are sensible—those are the RPC’s words, not mine—and it has rated the impact assessment on this as red.

I want to be absolutely crystal clear from the outset, across all the clauses, amendments and new clauses that we are debating, that harassment is wrong; that the sort of sexual harassment that the Minister spoke about is absolutely, categorically unacceptable; and that whatever it takes in the law, and from an enforcement perspective, to stamp harassment out must happen. Such harassment is simply unacceptable in our country and society. The comments that I am about to make are not in any way, shape or form critical of action against harassment, therefore; they are about trying to best understand how the Bill and the amendments that have been tabled would work, and the difference they would realistically make to people’s lives, including by protecting them from harassment or other unacceptable behaviour.

With those ground rules set, if I may put it in that manner, the Opposition are concerned, and have doubts about, the need for and the operability of the provisions in clauses 15 to 18. I repeat that that is not about the principle of stopping harassment, but about the operability of the proposals that we are considering. We must question whether the benefits of these clauses will be outweighed by the burden on employers and, in certain respects, by the chilling impact on free speech.

New clause 29 would require the Secretary of State to

“report on the extent to which the prevalence of third-party harassment makes the case for the measures in sections 15 to 18”.

Within that report, the Secretary of State must include

“an assessment of the impact of sections 15 to 18 on free speech…an assessment of the likely costs to employers…an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and…proposals for mitigations that can be put in place for employers employing people in such occupations.”

Amendment 135 quite reasonably provides that clauses 15 to 18 will not come into effect until—not never, but until—the House of Commons has approved the report required under new clause 29.

We then come to the two new clauses tabled by the right hon. Member for Dwyfor Meirionnydd, the leader of Plaid Cymru. I share the Minister’s concerns about the new clauses. I do not think they are necessary, I do not think that they particularly add to the spirit of what the Government are trying to achieve in the Bill and I do not think they pass the Opposition’s tests of operability. The official Opposition will therefore not be supporting them.

Amendment 130 would require employers to have regard to protecting freedom of expression when exercising the Bill’s duty not to permit harassment of their employees. I do not believe any business wants its employees to be harassed. No business owner that I know wants their staff, or any human being, to face harassment at all, in whatever setting. However, the amendment is designed to show the impossibility of the position in which the provisions on third-party harassment will put employers. It is a probing amendment, in the sense that we are not trying to create additional burdens for businesses by giving them another duty. It has been tabled so that we can talk about how unrealistic it is to expect employers to be able to enforce all the provisions in the Bill and, inherent to that, so that we can make the challenge that there may be more appropriate and operable pieces of legislation that already sit in statute or that may yet still need to be debated and passed through Parliament to prevent that.

The amendment is about how an employer can balance the right to free expression with the duties explicitly in the Bill. I do not believe that, in the moment, it will always be clear whether someone’s behaviour, say, in a pub falls on the right or wrong side of the line—it is a subjective test. Leaving that aside, there are situations where it will be frankly impossible for employers to abide by the law that the Government are seeking to make. I am interested in the Minister’s reflections on that.

The hon. Gentleman says that there will be situations where it is not just difficult, but impossible for an employer to abide by the Bill. Can he give some examples of the situations he has in mind?

I am building up to my wider point. To skip ahead, there will be circumstances where, even within the reasonableness test—I understand that test—something so unexpected and unforeseeable happens that the employer could not in any way have planned a protection for their employees around that. Despite that, the employer might find themselves challenged in a tribunal or, worse, some form of criminal investigation about why they did not take reasonable steps against a totally unexpected and unplanned-for eventuality. I accept that, in most cases, there are practical steps that could be put in place to prevent harassment of any sort, but there will be times where that reasonableness test could fall over and someone could find themselves in a very tricky spot, unable to account for why they did not prepare for the totally unexpected.

I refer the Committee to my entry in the Register of Members’ Financial Interests and my membership of the GMB. The hon. Gentleman is making the point that it would be impossible for an employer to reasonably avoid something so extreme and out of the ordinary, but that would actually fall directly in the test, because the tribunal would look at whether it was reasonable for the employer to have put in arrangements, procedures or preparations to avoid a likely, foreseeable scenario. His concerns are completely misplaced, because no employer could reasonably avoid a situation that was impossible to avoid.

To go back to the fundamentals, as the hon. Gentleman said, we and employers should be taking all appropriate and reasonable steps, because 40% of women in the workplace suffer sexual harassment. These measures are reasonable in and of themselves, so I put it to him that he is worrying about something that is covered by the test.

In many respects it is my job to be worried, to properly kick the tyres and to understand the operability of what the Government are trying to achieve. I certainly take the hon. Gentleman’s point on sexual harassment, and there is very clear criminal law in place that is probably more appropriate to bring perpetrators of such heinous crimes properly to justice. My concerns about the reasonableness test are less about that which can and should be pursued through criminal legislation; they are more about other forms of very subjectively tested harassment, as well as some points that I hope to make about freedom of speech. Hopefully, the hon. Gentleman will reflect on and understand those concerns when I get to that point.

I refer the Committee to my declaration in the Register of Members’ Financial Interests and my membership of trade unions. It seems that my thoughts align with those of my hon. Friend the Member for High Peak on the reasonableness of completely unforeseeable and unexpected things, but I would go a slight step further on what we are looking for from employers.

Even in circumstances in which something is so completely unexpected and unforeseeable that it might be reasonable for preparatory measures not to be in place, the duty would also address how employers respond. It is about having systems in place to react to incidents when they happen, rather than foreseeing every possible eventuality of the completely unexpected and unforeseeable. We can have supportive measures in place to prevent harassment from continuing or from happening again, and to support the individual.

I understand the hon. Gentleman’s point. I broadly agree, but my challenge to him is that reasonableness can be interpreted in many different ways. There will always been an appeals process or something similar, but I worry that unless the legislation is clearer, some good-willed employers who are entirely honest and decent in how they try to protect their staff could, in some circumstances, be on a very sticky wicket trying to defend themselves against something that they never foresaw or dreamed of. They may have been a little too innocent, but they will find themselves in a difficult spot. That is where safeguards need to be locked into the legislation in respect of what is a very subjective test.

I was about to come on to an example. I will preface it by saying that absolutely nobody should be abused in the workplace and absolutely nobody should face any form of harassment in the workplace. However, let us think for a moment about how some of the Bill’s provisions would operate in an NHS accident and emergency department. In any A&E up and down the land, our wonderful doctors and nurses sometimes put themselves in harm’s way, particularly late at night. Perhaps they have a patient who is clearly inebriated but has injured themselves. I am not excusing it for one second, but it can and does happen. Let us say that an incredibly drunk patient, who may have fallen and broken their hand, verbally abuses—not sexually harasses—the doctor or nurse treating them. The doctor or nurse does not deserve that, and that behaviour should not be happening, but I would wager that it happens most Friday or Saturday nights somewhere. It is unacceptable, but it does happen. What should happen in that circumstance?

Will the shadow Minister give way?

Let me just finish this point. I am trying to deal with a real-life scenario that should not be happening, but does. What does the doctor or nurse do, under the Bill? Do they refuse to treat the patient? Some would argue that perhaps they should, but the reality is that that is not what they are there for. They are there to heal, treat and support that patient who has got into a stupid predicament.

Will the shadow Minister give way?

I will just finish this point. Both hon. Ladies know that I will give way.

Where would the test come? What should the NHS, as the employer, have done to prevent that situation? What is the overall outcome in that scenario? Where does the reasonableness test fall? I repeat that I am not excusing the behaviour; I am putting it forward as a test to the provisions in the Bill, as a situation in which the employer—ultimately the national health service or perhaps the Health Secretary—would find themselves.

I appreciate the shadow Minister’s giving way. I will make an effort not to intervene every time he stands up.

There is a very serious point here that anyone who has ever been in a situation in which they have felt intimidated will understand. An employee in higher education may be intimidated by students who are irritated, angry or frustrated about their results. In my case, they came to my office because they felt that they should not have failed. I have found myself in a small room—the kind of room in which this House would not allow MPs to hold a surgery—with no external access and no security guards on the door to intervene.

Such situations can be hugely difficult. Although the employer is not always in a position to pre-empt the situation, taking reasonable steps surely means providing an option for everybody to have an emergency phone number—that is what was available to me in my university job—or, at A&E, to have security staff intervene when somebody arrives quite clearly inebriated, in the same way that our security staff do at our surgeries. They will immediately foresee the problem and will make sure that the person is accompanied and is not left alone with a member of staff. Those are the sort of reasonable preparations that we would expect; I would be surprised if any employer were not happy to carry them out. I therefore see no reason why that should not be made clear in the legislation.

I hope that the hon. Lady is right, but part of the test that the amendment sets for the Government is whether it will work. Is it clear? Will it put the protections in place that everybody wants to see? There is a question mark over whether they will work.

The NHS A&E environment is an example with which we are probably all familiar from our postbags. Constituents write to us about situations that they have witnessed or been in themselves, particularly on a busy Friday or Saturday night or in the Christmas season when there are lots of parties and lots of people probably having far too much to drink and sometimes getting themselves into unacceptable situations. There might not be the staff to double up; the patient might be abusive to all of them. It is unacceptable, horrible and wrong, but it is sometimes the reality. Where does that leave the senior doctor or nurse on duty, the chief executive of the trust, and ultimately the Secretary of State or the permanent secretary to the Department of Health and Social Care? Where does the test actually leave them, and what more can be done to make the legislation work?

The hon. Member for Scarborough and Whitby has been waiting patiently to come in.

It is a pleasure to serve under your chairmanship, Mr Mundell. I thank the hon. Member for giving way. I refer the Committee to my declaration of interests and my membership of Unison and the Writers’ Guild of Great Britain.

The NHS has zero-tolerance policies, in common with the police service and any other service that deals with these difficult situations. They are good employers that have things in place. The shadow Minister spoke about employers not thinking about situations and being innocent. I draw his attention to their responsibility to employees who were innocent, but have lost their innocence as a result of unwanted sexual harassment or worse.

I do not disagree with a word that the hon. Lady says. The NHS, like every employer, is right to take a zero-tolerance attitude to any form of harassment against its employees, customers, patients or whoever else happens to be on its premises at any time.

I accept the hon. Lady’s point about innocence. My A&E example was not so much about sexual harassment or worse criminality; it is all horrendous criminality, in my view, but there are other criminal laws that can and should be used to bring perpetrators to justice in that space. My example was more about abusive behaviour in the form of verbal harassment from a patient who is drunk or high on drugs. It is still horrible, it is still wrong and it still needs action, but what happens? The zero-tolerance policy, all of a sudden, becomes a poster on the wall rather than real, live action there and then, as that drunk patient makes unacceptable remarks of whatever nature to the nurse or doctor. The test is whether the words in the Bill before us—as opposed to other, potentially even more stringent or stronger legislation that is already on the statute book or that may yet need to be passed—will have a better effect.

I think the Bill will do that, because it will strengthen the employers’ responsibility to take all reasonable steps.

I hope that the hon. Lady is right. What my colleagues and I seek, through our amendment, is to test that. I do not think that anyone will criticise any Member of this House, on either side, for trying to properly road-test any legislation that comes before us and check whether it will have the effect that the Government seek.

Amendment 131 is topical, given the intervention that the hon. Member for Chippenham made about higher education. It would exclude higher education institutions and hospitality providers from some of the duties in the Bill, not around criminal behaviour—it would not exclude them from legislation that should rightly be used to challenge sexual harassment, for example—but around free speech. Employers may end up being overly cautious with respect to protecting free speech, as they will be worried about claims being brought under this legislation. That would lead to free speech debate and challenge being eroded. In the case of higher education, those are the very institutions at which free speech, challenge and rigorous and robust debate should frankly be taking place, and where wrong and unacceptable ideas can be knocked down robustly and firmly through the medium of intellectual debate.

It is a pleasure to serve under your chairmanship, Mr Mundell. On the point about the hospitality and pubs sector, on which I held a debate in Westminster Hall a few weeks ago, there is real concern about this part of legislation, in particular about freedom of expression and freedom of speech. Does my hon. Friend agree that one consequence of the legislation might be that industry take actions beyond those intended? For example, people might self-censor beyond what could be seen as an off-colour or offensive joke, because they are scared that they could be held liable later for not protecting their employees. My hon. Friend gave an example, but another one is a comedy club, which would be conscious of and concerned about who they invite to entertain because of the perception that some of their staff could be offended, and the reasonableness of how that could be interpreted in the context of harassment. Does my hon. Friend agree that this is a concerning unintended consequence of the legislation?

My hon. Friend is right that there needs to be greater clarity about that which is already covered in criminal law—sexual harassment, direct racial abuse or abuse to someone on the basis of their sexuality, which clearly has to be actioned under criminal law and it must be ensured that the perpetrators are brought to justice—compared with satire or cutting jokes. Those are things that do not stray into the criminal, but perhaps some people might be offended by them, for whatever reason.

There are quite a lot of comedians openly talking about whether comedy is in fact becoming a thing of the past in this country. They are finding themselves unable to tell jokes that, while not going into the criminal, do risk offending some people. If that ends up shutting down comedy clubs or open-mic nights in pubs, it would be an unintended consequence that I cannot imagine the Government would want to bring about.

However, maybe the hon. Gentleman will tell me.

I refer to my membership of the GMB union and the Community trade union. I shall come on to some of the nonsense we are hearing around free speech. I ask a direct question, seeing as we seem to be equating jokes with harassment: does the shadow Minister know the definition of harassment under the Equality Act and would he share that with the Committee so that we may understand what we are talking about here?

What I am trying to test is the point at which the reasonability point would trigger. Is this the right Bill—the right set of clauses—to deal with the problems the hon. Member has outlined? There is a clear difference between that which should be treated under criminal law—and rightly stamped down on hard and forcibly—and the unintended consequence that will force sectors such as higher education or hospitality to become so risk averse that they shut down some of their activities. Yes, those activities, whether some form of comedy or whatever, could potentially be offensive to some people, but they are not criminal.

I am afraid the shadow Minister does not know the definition under the Equality Act. If he did, he would know that the conduct is required to either violate someone’s dignity or create

“an intimidating, hostile, degrading, humiliating or offensive environment”.

That conduct has to be related to someone’s protected characteristic: sex, race, gender or their sexuality. We are talking about very serious circumstances. They fall short of the criminal definition of harassment, but they are within the Equality Act definition.

There is already a test within the current law to avoid some of the free speech arguments the shadow Minister is making. He is seeking to trivialise the experience of many people in those industries who face unacceptable harassment in the workplace.

I must take issue with the hon. Gentleman. I am not trying to trivialise anything. I have been clear from the outset about how seriously we should take sexual harassment, racial abuse and abuse on the basis of someone’s sexuality, and that I believe the full force of the right laws should be used against any perpetrator of that hideous, evil and unacceptable behaviour. I take issue with his comment that I am trying to trivialise anything. I am trying to ensure that the provisions in the Bill will actually work, and will not have unintended consequences that some might call trivial—which some might be offended by but which do not cross what most people in society would deem some of those lines.

In the definition he just gave, the hon. Gentleman mentioned the issue of undermining someone’s dignity. I am reminded of the Society of Motor Manufacturers and Traders dinner a couple of weeks ago. I cannot remember whether the Minister was there, but the Secretary of State for Business and Trade was. Quite a famous comedian was on stage after the speeches, and their act was essentially to pick on people on various tables to find out which motor manufacturer they worked for and then, I would suggest, be quite brutal with them. He did perhaps undermine their dignity. It was not on the basis of sexuality, race or anything like that, but it was quite a brutal act. Everybody was laughing away, but what if someone in the audience was offended by that and took issue with it? Does that then put the organisers of the dinner—the chief executive of the SMMT—in the spotlight, under the provisions of the Bill? That is the point I think all members of this Committee and, ultimately, all Members of the House, have to be satisfied with before anybody allows this to become statute.

I think the shadow Minister has already answered this question. What protected characteristic were any of those jokes related to? This is the point. It is not to stop people being comedians. If someone sits in the front row of a Ross Noble gig, they are bound to get picked on. If the joke relates to a protected characteristic, that is where it crosses the line into harassment. The example that the shadow Minister has just given is a good example of where this would not be triggered, because none of the jokes related to a protected characteristic.

I hope that the hon. Gentleman is right, but that is not how the Bill is worded. The Bill allows the reasonability test to be applied over the top of the Equality Act definition he has brought to the attention of the Committee. I gently ask him to reflect on that point and just check, because I do not think he would want this unintended consequence to be followed through into legislation. It would undermine the very serious things we spoke about earlier and, dare I say, trivialise them.

I refer Members to my declaration of interests, and remind them that I am a member of the GMB. It is timely that we are discussing this, as today is Human Rights Day. In 1998, the Labour Government brought the Human Rights Act into domestic law. Freedom of speech is indeed a human right, but that does not mean someone has the freedom to incite hatred, discriminate or attack people with a protected characteristic. In this fictional comedy club we are talking about, what are the things that people are mentioning? Can the shadow Minister give us a specific example of a joke that he thinks the Bill would put in jeopardy of undermining or putting at risk the CEO of said organisation?

I think I have been clear that every law available should be used—potentially, more could be passed—to properly prosecute, challenge, shut down and stop anyone inciting hatred on the basis of race, religion, sexuality or whatever it might be. I cannot find any better set of words to make my revulsion at those crimes clearer, and I show my absolute support for any enforcement agency or Government of any political persuasion that brings forward workable laws to clamp down on those unacceptable criminal behaviours, full stop.

Would my hon. Friend give way?

I will just finish this point, then I will be delighted to give way to my hon. Friend.

The point I am trying to make is that bits of legislation that we are asked to consider sometimes have unintended consequences, and that there is a risk of someone being offended by something that does not pass the reasonability test in this Bill. Outside the well-defined areas that go into the criminal, part of free speech is the right to offend on certain levels.

Will the hon. Gentleman give way?

I will give way in a second.

Many comedians—Jimmy Carr is an example—talk frequently at the moment about comedy being shut down. It is not criminal; it is not racial hatred or hatred on the basis of religion, sexuality or anything like that. It is beyond those points.

We all enjoy comedy in this House, but this is a very serious subject. Article 10 of the Human Rights Act 1998, on the exercise of the freedoms that the shadow Minister is talking about, carries with it duties and responsibilities. It states that the freedoms

“may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of”

a number of things. In this fictional comedy club or this fictional speech, all the things that you are saying may—

I apologise, Mr Mundell. All the things that the shadow Minister has referred to are already enshrined in various laws in this country, so what is the fictional scenario that he thinks this Bill jeopardises?

The hon. Lady is right to bring the Committee’s attention to that which is already laid down in statute. I think that perhaps where the misunderstanding is coming in—the Opposition are trying to test this—is whether the new reasonability test will deliver perverse results in a tribunal. Probably nobody sitting in this room would expect that to happen, but it could supersede that which is already set down and create a new precedent.

I should probably make reference to my entry in the Register of Members’ Financial Interests: I am an unpaid trustee at the Index on Censorship, which may be relevant to this debate.

I do not think anybody here is a free speech absolutist. My hon. Friend is trying to test scenarios, but he is in no way talking about issues such as incitement of hatred, which are already criminal matters. We are talking about the codification of things that may be subjective in the light of the law of unintended consequences.

To bring some colour to the conversation, I thought I would make reference to a recent Independent Press Standards Organisation ruling. I cannot imagine that that was ever the kind of ruling that was intended at the time that IPSO was created. Gareth Roberts, who sometimes writes for The Spectator, was writing about a third party who had, in turn, written about issues relating to gender, and referred to them as

“a man who claims to be a woman”.

That person then complained to IPSO, which ruled that it was not wrong as a statement of fact, but still upheld the complaint on account of its being a prejudicial or pejorative reference to that person. I do not think that that is the kind of thing that was ever intended when IPSO was created, but it is the type of example that we may be talking about right now. I would love to know what my hon. Friend thinks about that.

My hon. Friend highlights an issue that would come down to a subjective test, so “reasonableness” could mean something very different in different tribunal settings and to different individuals casting judgment on any such complaint. That goes to the absolute nub of what we are asking the Government to reflect on. Is the test strong enough? Is it workable? Is it operable? Will it actually produce perverse outcomes?

Is the hon. Gentleman aware that, in the example that the hon. Member for West Suffolk just cited, IPSO found that there was no harassment, and therefore there was a finding under clause 12(i) of the editors’ code of practice, rather than clause 3?

I am not certain that is quite the point that my hon. Friend the Member for West Suffolk was making. However, in the interest of fairness, I will commit to properly looking up that case, which I had not come across until my hon. Friend mentioned it a couple of moments ago.

We are back to talking about perverse outcomes and unintended consequences, which are important things to consider. However, is that not what we are looking at in amendment 131? In in my view, it confuses sectors with functions. The hon. Gentleman says that he and his colleagues have selected these particular cases or sectors because they relate to freedom of speech. However, if we take the example of universities and higher education, a higher education institution contracts services of all sorts, many of them not relating to freedom of speech—for example, security and refuse services—but if the amendment were made and if it failed to conduct even basic vetting on a contractor, it would be exempt from these provisions if an incident of sexual harassment occurred. However, if exactly the same circumstances were to be repeated by a community hall or a church that would fall under the scope of the legislation. Is there not a problem in the drafting of the amendment? On that basis alone, it should not be accepted.

I understand the point the hon. Gentleman is making. However, in the examples he gave he has shown exactly why there is a need to ask the Government to doubly rethink the way in which the original Bill is drafted to ensure that some of those areas are covered off so that the reasonability test is clearer and people do not find themselves on that proverbial sticky wicket for innocent reasons. We tabled the amendment—we fully accept it does not cover everything and every eventuality—because it is our job as the Opposition to highlight cases which in turn highlight areas where the Bill may be deficient and where it needs a little surgery to ensure that it achieves what the Government are trying to achieve, rather than creating many loopholes and perverse outcomes. I have probably spoken for long enough on this group of amendments.

Will my hon. Friend give way just one more time? I have an excellent example that I would like to share.

How can I say no to the offer of an excellent example from my hon. Friend?

It has just been drawn to my attention that the Health Secretary is the subject of an official complaint to the Labour party for his jokes about the former Transport Secretary at The Spectator party last week because his comments were considered “bullying and uncomradely” according to the complaint. That may be another example of this kind of subjective test.

I thank my hon. Friend for that. It may well be such an example. I must admit I resisted the urge to attend The Spectator awards last week. I am told the Health Secretary did make what many considered a very funny speech. However, it is clear that some deem it uncomradely. Who knows? Had this legislation already been enacted the Labour party itself might have found itself on that sticky wicket. On that note, I ask the Minister to reflect on the provisions in this Bill in that regard and check that the Government really do have this right.

Ordered, That the debate be now adjourned.—(Anna McMorrin.)