Assisted dying: Labour’s self-administered lethal cocktail

Posted on December 2, 2024 by wonkypolicywonk

So, on Friday, 236 Labour MPs voted for Keir Starmer, Wes Streeting, Shabana Mahmood and the rest of the Labour Government to assume responsibility for Kim Leadbeater’s assisted suicide Bill, and for the increasingly bitter Red-on-Red warfare of the last eight weeks to continue for at least another five months.

Because, as the Cabinet Office Guide to Making Legislation makes clear (in paragraphs 45.24-26), by adopting a neutral position on a Private Members’ Bill (PMB), the Government has nevertheless indicated that it is “prepared to accept [the PMB] reaching the statute book with all of the consequences”, and “the Government has a duty of care to the statute book”. In short, from now on it is up to the Government, not Kim Leadbeater and her supporters, to avoid the risk of which I warned in October: a lack of proper scrutiny leading to the statute book, and the public, being lumbered with legislation that – come implementation – turns out to be a pile of pants.

This means the easy ride that Kim Leadbeater and her supporters have enjoyed to date is at an end. Perhaps most significantly, the Government will surely now have to publish the impact assessment, explanatory notes, legal issues memorandum and delegated powers memorandum that – if it has been following the Guide to Making Legislation – it submitted to the Parliamentary Business and Legislation (PBL) Committee of the Cabinet in late October (see paragraph 45.25).

While the time gap between Leadbeater publishing her PMB (on 11 November) and the Bill’s Second Reading was no shorter than it is with many government Bills, public and parliamentary scrutiny of the Bill’s provisions prior to Friday’s debate was seriously hampered by the lack of such documents, and in particular the lack of an impact assessment showing the likely impact on and associated financial cost (or otherwise) to the NHS and the justice system.

So, for example, when the former President of the Family Division of the High Court, Sir James Munby, included in his detailed demolition of the PMB’s proposed safeguards a simple calculation – based on Kim Leadbeater’s own figures – showing they could consume the entire current capacity of the High Court Family Division, there was no answer from Leadbeater and supporters such as Lord Falconer to Sir James’s straightforward questions:

Where are the judges to be found? And what of the impact on the wider administration of justice which, as is unhappily notorious, is already under enormous strain?

On social media and by email, I repeatedly asked Kim Leadbeater, Lord Falconer and the PMB’s eleven co-sponsors to simply confirm whether they accept or contest Sir James’s calculation of the possible dire impact on the High Court. Yet, despite Leadbeater’s oft-stated commitment to a “robust and well-informed” debate, I never got an answer. Indeed, the only response to my (reasonable and polite) enquiries was the newbie Labour MP and only legally qualified co-sponsor of the PMB, Jake Richards, blocking me on social media (then scoffing about having done so when challenged by an acquaintance).

Instead of addressing such questions – which they must surely have anticipated – supporters of the PMB chose instead to hide behind the disingenuous notion that “this debate has to proceed not on the basis of pounds and pence. It has not to be a debate about money, but about morals.” Yet no minister has ever stood up at Second Reading of a government Bill and said: “I cannot tell you how the provisions in this Bill will actually work, or how much they are likely to cost the taxpayer. And we may well change them anyway. But if you like the general idea of this Bill, please vote for it today.”

However, what worked prior to and at Second Reading will not work at committee stage. It’s now clear that the Bill’s committee stage will be more like that of a government Bill, not a PMB. Immediately after MPs backed the Bill by 330 votes to 275 on Friday, Kim Leadbeater tabled a motion to give the committee the power to take oral and written evidence, thereby remedying one of the key deficiencies of the PMB process. And it would be ludicrous for the Committee to take such evidence without subsequently debating it. So it is safe to assume that the committee will sit multiple times over weeks or even months, rather than just the single, short sitting that is all most PMBs experience – during Friday’s Second Reading debate, Ruth Jones noted that, in the last session of Parliament, the average PMB committee stage involved a mere 35 minutes of debate.

The committee will want to see the Government’s impact assessment, and – if the Second Reading debate is anything to go by – the minister on the committee will face a raft of searching questions from well-prepared and heavily-armed opponents of the Bill. I watched Friday’s debate, and to my mind the best of the 44 speeches were all made by such opponents – most notably Danny Kruger, Rachael Maskell, Meg Hillier, Jess Asato, Ruth Jones, James Frith, Florence Eshalomi and Ben Spencer – while the flimsiest were made by leading supporters of the Bill such as Paula Barker, the laughably dim Christine Jardine, and the aforementioned Jake Richards. And the debate’s low point was provided by newbie Labour MP, Cat Eccles, who pompously rose during Danny Kruger’s speech to make a pointless point of order (and later doubled down on social media).

Furthermore, in the run-up to the Second Reading debate, a number of MPs published incisive and considered statements setting out the reasons why they would be voting against the Bill. For example, Labour MP and Chair of the Science, Innovation & Technology Committee, Chi Onwurah, noted:

The Bill is flawed, there has not been sufficient parliamentary and public debate, [and] instigating State support for the taking of life should not be done through a Private Members’ Bill.

Detail on the implementation and the resources is lacking and there is no impact assessment … The Bill will have to work not in a theoretical world with great palliative care, a well-resourced NHS and great respect and emotional support for the dying and terminally ill, but in the real world with patchy palliative care, an under-resourced NHS, and where the dying may lack emotional support or even be subject to coercion … There has not been sufficient public or parliamentary debate for a Bill of this nature … I know that homosexuality and abortion were legalised through PMBs, but I do not accept the implied moral equivalence … Even without the slippery slope argument, extending the State’s abillity to support, sanction and assist in the taking of life requires wide-ranging consultation, research, debate and consideration.

So, while Kim Leadbeater gets to pick the committee, and she and her supporters will have an in-built majority, I predict the committee’s weeks or months of deliberation will be an intellectual mismatch, and that, by the time the Bill reaches Report stage/Third Reading on 25 April, it will be a Private Members’ Bill in name only.

Unlike at Second Reading, the repetition of simplistic points and the telling of emotional stories and outright untruths by Leadbeater and her supporters will have proved woefully inadequate in the face of oral and written evidence from external experts and hand-to-hand combat with MPs opposed to the Bill. The Government, not Leadbeater and her supporters, will have had to fill the information and legislative gaps, and through their advocacy for their own amendments ministers will have assumed direct responsibility for whatever kind of suicide service, safeguards against coercion, and associated training programmes for doctors and the judiciary Rachel Reeves – who voted for the Bill on Friday – is happy to fund out of her £40 billion fiscal black hole.

Meanwhile, as reported by the rabidly pro-assisted suicide Guardian, many in the Government will continue to tear their hair out in frustration at how the Bill is “dominating the conversation and causing conflict between Labour ministers and MPs. “It’s a nightmare,” one official told the paper last week: “If [the Bill] passes [Second Reading], it will eat up so much time. And it’s causing divisions among our MPs when we have worked so hard to try to build bonds between them.” Another reportedly said “Keir [Starmer] wanted it to happen. It’s that simple. There isn’t anyone else who thought this was a particularly great thing to do in the first months of a Labour government.”

Which is presumably why the issue was not even mentioned in Labour’s election manifesto. And now, having upset pensioners and many Labour MPs by cancelling this year’s winter fuel allowance, and the farming community over inheritance tax, the Government has, in the reported words of yet another insider, got itself “in the situation where the first thing we are seen to be offering [in terms of improving the NHS] is making it easier for people to die”.

Oh well. That’s life, I guess.

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Assisted dying Bill: a ‘how to vote’ guide for Labour MPs

Posted on November 27, 2024 by wonkypolicywonk

Are you a Labour MP? Maybe newly-elected on 4 July, or otherwise unfamiliar with the deeply defective and anachronistic Private Members’ Bill process? Still undecided how to vote on Kim Leadbeater’s assisted dying Bill on Friday?

Well, fret no more! Just select the answer to each of these five, simple questions that best fits your view, work out your total score, then follow my voting advice. Sorted!

Q1. Are you ready to be associated forever with releasing the assisted suicide genie from the bottle?

(A) Yes, old and sick people are incredibly costly, and I’d much rather we spent the money on nukes, atomic submarines and freeports.

(B) Look, terminally ill people have a right to be bumped off by the State. Who am I to stop them?

(C) Actually, no, not really.

Q2. Are you confident that doctors can reliably predict how long someone with a terminal illness has to live, and that they can spot family coercion a mile off?

(A) Yes, doctors are never wrong, and the NHS’s £3 billion annual bill for medical negligence is simply due to unscrupulous lawyers.

(B) Look, terminally ill people have a right to be bumped off by the State. Who are doctors to stop them?

(C) Actually, no, not really.

Q3. Do you believe implicitly in judicial omniscience and infallibility?

(A) Yes, the Birmingham Six were most likely guilty. Probably. Who cares?

(B) Look, terminally ill people have a right to be bumped off by the State. Who are judges to stop them?

(C) Actually, no, not really.

Q4. Given that the Government cannot afford to pay this year’s winter fuel allowance or abolish the two-child benefit cap, are you confident that creating a National Suicide Service will not impact adversely on either NHS services intended to keep people alive, or the chronically underfunded justice system?

(A) Yes, I’ve just hung a Dignity in Dying bauble on the money tree.

(B) Look, terminally ill people have a right to be bumped off by the State. Who are taxpayers and Treasury bean counters to stop them?

(C) Actually, no, not really.

Q5. Given that Report stage/Third Reading wouldn’t be until 25 April, after which the Bill would go to the Lords, are you happy for this Red-on-Red warfare to rumble on for another six months?

(A) Yes, every day in every way, this issue is demonstrating not just Keir Starmer’s outstanding leadership skills, but his mastery of political strategy and his unrivalled tactical acumen.

(B) Look, terminally ill people have a right to be bumped off by the State. Who are Wes Streeting, Shabana Mahmood, Bridget Phillipson and Morgan McSweeney to stop them?

(C) Actually, no, not really.

Now score your answer to each question, and total to get your final score:

For every question to which you answered (A): score 3 points

For every question to which you answered (B): score 2 points

For every question to which you answered (C): score 0 points

How did you score? And what should you do on Friday?

You scored 11-15 points: Speak and vote for the Bill on Friday, and be sure to let Kim Leadbeater know that you’d be proud to serve on the bill committee. Yes, Kim gets to pick the committee! Democracy 2024, innit.

You scored 5-10 points: Find something you really, really need to do in your constituency on Friday.

You scored 0-4 points: Skip the five-hour debate, but vote against the Bill on Friday. A ministerial post in Wes Streeting’s first government awaits you!

Actual footage of British democracy in action, September 2024
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Assisted dying: Kim gets Keir off the hook, but at what price?

Posted on October 17, 2024 by wonkypolicywonk

So, Keir Starmer had himself filmed making a personal promise to TV celebrity Esther Rantzen – Democracy 2024, innit – and now backbench Labour MP Kim Leadbeater, having had her numbered wooden ball pulled out of a glass bowl at just the right moment – Democracy 2024 again, innit – has introduced a Private Members’ Bill (PMB) to legalise assisted dying for terminally ill adults in England and Wales. MPs will hold their first debate on the Bill – known as Second Reading – on Friday (sic) 29 November.

In fact, all that Starmer promised Eshter Rantzen – and the electorate – prior to the General Election on 4 July was that he would “make time available [for a debate and a free vote]” on assisted dying. He didn’t mention Private Members’ Bills during his staged conversation with Esther Rantzen in March, and the words he used suggest that what he actually had in mind was a debate and free vote in government time, at some point in “the next Parliament”. But, without actually delivering on that promise, he has, in his own words, now taken advantage of “an opportunity that has arisen” – Ms Leadbeater’s PMB.

Actual footage of British democracy in action, September 2024

Earlier this week, Ms Leadbeater idiotically told viewers of BBC Newsnight – all six of them – that her PMB is “potentially one of the most important changes in legislation that we will ever see in this country”. And, who knows, maybe it is. I’m undecided about assisted dying – no one wants to die a horrible death and, like Woody Allen, I am allergic to pain. The only good thing about watching my then best mate die, after he stupidly fell off Ben Nevis at the ripe old age of 43, was knowing that he hadn’t suffered more than two or three seconds of fear and pain.

Short of dying peacefully in our sleep, many of us would opt for such a quick and clean exit from life, if we could. I am an atheist, and would describe myself as a humanist. So I am instinctively sympathetic to the case for assisted dying. But the risks of legalising the assisted suicide of vulnerable, scared and therefore potentially manipulable people are not hard to see. There’s a good exploration of some of the issues involved here.

However, I have spent much of my professional life working on legislative reform, including four years in the House of Commons as staffer to an MP who was not averse to using a PMB as a vehicle for her (not always mainstream) views and (not always practicable) policy proposals. And if there is one thing I learned from that experience it is that, in the 21st Century, the deeply defective and chronically anachronistic PMB process is not the way to make any important change in legislation, let alone ‘one of the most important changes in legislation that we will ever see in this country’.

Indeed, I would expect a notionally progressive government with an explicit manifesto commitment to “modernise the House of Commons” to be busy abolishing – or, at the very least, reforming – anachronisms such as the PMB circus, not nudging backbench MPs to have a go at introducing ‘one of the most important changes in legislation that we will ever see in this country’ without proper parliamentary scrutiny, so that the Prime Minister can say he has delivered on his promise to a TV celebrity.

Reasons why the PMB process fails to provide proper scrutiny include:

  • While PMBs go through the same legislative stages as government bills, the process is different and key Commons stages – the Second Reading debate, and Report stage/Third Reading – take place on Fridays, when there is no government business and most MPs are in their constituency, not Westminster. This hands significant leverage to single-issue campaign groups able to motivate and mobilise their supporters in the Commons, and means a PMB can pass Second Reading even if a majority of MPs don’t attend and don’t vote.
  • Unlike with government bills, debates on PMBs are not subject to a programme motion, (that is, they are not timetabled), but the Second Reading and Report stage/Third Reading debates must conclude by 2:30pm (i.e. just five hours after starting), if the Bill is to proceed, and by convention there are no time limits on speeches. This militates against proper debate – and therefore proper scrutiny – because just a handful of hostile MPs can time-waste and filibuster, with speeches and interventions by supportive MPs simply helping to run down the clock.
  • At Second Reading, both government bills and government hand-out PMBs are accompanied by explanatory notes and an impact assessment prepared by the relevant government department, and these are an essential aid to proper scrutiny. But, as Kim Leadbeater’s Bill is not a government hand-out PMB, there will be no such explanatory notes or impact assessment. In September 2015, Rob Marris MP’s Assisted Dying (No 2) Bill – the last PMB on assisted dying to be debated by MPs – was not accompanied by such explanatory notes and impact assessment at Second Reading (which it failed to pass), as it was also not a government hand-out PMB.
  • At Committee stage, unlike with government bills there is no provision for the taking of external evidence from experts or members of the public. And, if MPs are considering ‘one of the most important changes in legislation that we will ever see in this country’, maybe they should be taking full account of such external evidence. Furthermore, the PMB’s sponsor gets to choose the committee members. So, while the committee membership must “reflect the balance of views on the Bill”, the sponsor can exclude the strongest critics of the Bill.
  • As with Second Reading, at the crucial Report stage, the strict five-hour time limit means that hostile MPs can seek to block further progress of a PMB by tabling an excessive number of amendments – because, unless all such amendments are considered, the PMB cannot proceed to Third Reading. This is a more subtle way of blocking a PMB than filibustering at Second Reading.
  • In practice, because the sponsor of a PMB is a backbench MP (and then a backbench ally in the Lords), rather than a departmental Secretary of State, it is easier for government ministers to avoid accountability for the likely impact of the Bill during its passage through the Commons and Lords.

In September, after Observer journalist Sonia Sodha posted on X/Twitter that “it’s crazy to believe something so complex [as assisted dying] should be fast-tracked legislatively using a Private Members’ Bill”, the Labour MP and former Chair of the Committee on Standards Chris Bryant popped up to say:

That’s how we changed the law on homosexuality, the death penalty and abortion. It doesn’t mean lack of scrutiny. It just meant lack of whipping.

Leaving aside that the story of the abolition of the death penalty, for example, is a lot more complex than Sydney Silverman’s PMB in 1965 – there had been a four-year Royal Commission on Capital Punishment 1949-53, and the Homicide Act 1957, which started life as a government bill, had already abolished the death penalty in most murder cases – it’s a bit depressing to hear a senior MP say ‘this is how we did things in the 1960s, so it’s fine to do it this way, 60 years later, in 2024’.

Societal norms, and public attitudes towards and expectations of our parliamentary democracy, have changed enormously since the mid-1960s, when Sydney Silverman’s short, four-clause Murder (Abolition of Death Penalty) Act 1965 finally abolished the death penalty in all cases of murder, Leo Abse’s 11-clause Sexual Offences Act 1967 partly decriminalised homosexuality (in England and Wales, at least), and David Steel’s seven-clause Abortion Act 1967 first legalised abortion. So what was necessary (to achieve progressive reform) then, is simply not necessary now.

In 2024, there is simply no good reason why a government recently elected on a platform of ‘change’ and an explicit manifesto commitment to “modernise the House of Commons” should use the defective and anachronistic PMB process to ensure a ‘debate and vote’ on an issue that it failed even to mention in that manifesto. With a 174-seat majority, Keir Starmer has any number of options for holding a Commons debate (and free vote) on the principle of assisted dying in government time, thereby delivering on his promise to Esther Rantzen (which wasn’t that he would ‘change the law’).

Were such a free vote on the principle of assisted dying to reveal a majority in favour among MPs, the Government could then establish a Royal Commission or ask the Law Commission to examine the issues and make recommendations for legal reform. If we are going to make ‘one of the most important changes in legislation that we will ever see in this country’, it is surely worth spending a bit of time getting it right.

But giving a nudge and a wink to Kim Leadbeater and her PMB in order to deliver on that somewhat undemocratic promise risks lumbering Parliament, the Statute Book and, ultimately, the public with poorly considered (so quite possibly flawed) new legislation on a complex and contentious issue. And, on 4 July, not a single person voted for that.

Update, 28 October: Two key cabinet ministers – health secretary Wes Streeting and justice secretary Shabana Mahmood – have now said they will vote against Leadbeater’s PMB, and there are growing signs of unrest among backbench Labour MPs about proper scrutiny of the Bill, which has still not been published. Indeed, with a number of Tory MPs piling in, Labour’s handling of Starmer’s unwise promise to Esther Rantzen is starting to look like yet another magnificent own goal.

Further update, 12 November: So, last night Kim Leadbeater published her Terminally Ill Adults (End of Life) Bill – all 38 pages of it, with 43 clauses and six schedules, making it one of the longest PMBs ever, and certainly far longer than the three 1960s PMBs referred to above. And there are Explanatory Notes prepared by Ms Leadbeater. However, there is no Impact Assessment and, as legal academic Yuan Yi Zhu noted last night, “more than half of [the 22-page Explanatory Notes] is just verbiage about why assisted suicide is great”. Indeed, to my mind, the Explanatory Notes add little if anything, and read more like a tick-box exercise.

In his thread on X/Twitter last night, Yuan Yi Zhu provides a handy summary of the Bill’s provisions, including what Ms Leadbeater describes as “the strictest safeguards of any legislation [on assisted dying] in the world”. Similarly, at a press briefing in the House of Commons this morning, Lord Falconer claimed the Bill has “the best and most robust safeguards in the world”.

This may or may not be true, but the fact is you don’t get ‘the best and most robust safeguards in the world’ for free. Indeed, it’s clear that, as Observer journalist Sonia Sodha noted last night, the Bill “would potentially impose massive capacity issues on the NHS/medical profession, on the chief medical officers, and on the family division of the High Court”. Kim Leadbeater has reportedly said that up to 3% of deaths would be covered by the provisions of her Bill, and in 2023 there were some 575,000 adult deaths in England and Wales (the total number of recorded deaths was 581,363, of which 3,743 were of children under the age of 18). So, even if only 2% of adults chose to apply for assisted dying, there would be some 11,500 applications per year.

Significantly, in terms of the Bill’s progress towards the Statute Book, those public spending implications mean that, even if the Bill passes Second Reading on 29 November, a money resolution would be needed before the Bill could proceed to committee stage. And only the Government can table a money motion.

So, to my mind, the Bill is dead in the water unless the Government abandons its supposed neutrality by agreeing to pick up the tab for the safeguards – however much it is. Which would be an odd thing to do, just weeks after banging on about a fiscal black hole. Indeed, this alone may explain why both health secretary Wes Streeting and justice secretary Shabana Mahmood have let it be known they will vote against the Bill at Second Reading. [On 13 November, Wes Streeting warned that legalisation of assisted dying would have significant resource implications for the NHS.]

It is true, as legal academic Daniel Gover noted to me this morning, that the Cabinet Office Guide to Making Legislation states (in paragraph 45.40, on PMBs) that “Moving such a [money] motion does not necessarily indicate government support for a [PMB]”. But the word ‘necessarily’ is doing a lot of heavy lifting there, not least because PMBs almost invariably provide for relatively minor and non-contentious legal reforms. And, of course, just like the Pirate Code, the Cabinet Office Guide is more like guidance, not a set of rules.

So, while it may be technically possible for the Government to table a money motion while still claiming to be neutral on the Bill, thereby smoothing the Bill’s onward passage to committee stage, to my mind this would look like the Government giving the Bill favourable treatment. Because the Government would be giving the Bill favourable treatment (just as it would be if it intervened to allow for e.g. time limits on speeches in the debates, as some procedural experts have suggested). And, politically, perceptions are important.

What’s more, I suspect such facilitation of the Bill’s progress towards the Statute Book, under the cloak of supposed neutrality, would lead to a not insignificant row between senior ministers over the cost implications and how or where the money to cover those new costs would be found. Which brings me back to the title of this post: Kim Leadbeater may have got Keir Starmer off the hook of his promise of a vote to Esther Rantzen, but at what cost?

If there is anyone sensible in Downing Street, they should be working towards killing off the PMB at Second Reading on 29 November. Otherwise, what has rapidly become a bit of a farce – with even a co-sponsor of the PMB, Lib Dem Christine Jardine MP, completely unable to explain how the ‘most robust safeguards in the world’ would actually work, and Leadbeater complaining bitterly about health secretary Wes Streeting’s (quite understandable) intervention about the cost implications – will rumble on for months. Because the first ‘remaining stages’ PMB Friday of the 13 scheduled sittings – i.e. the earliest date on which Leadbeater’s PMB could normally be expected to have its Report stage and Third Reading – is not until 25 April (the first seven of the 13 scheduled PMB Fridays are set aside for the Second Readings of PMBs). After which, the Bill would be debated – and picked apart – in the Lords.

Further update, 14 November: Indeed, during Business Questions in the Commons earlier today, the Leader of the House of Commons, Lucy Powell, told MPs that the PMB’s committee stage is likely to last “several weeks”, and that Report stage/Third Reading “will not be until April at the earliest”. And, shortly after Ms Powell sat down, the Transparency Project published a lengthy demolition of the PMB’s proposed safeguards by Sir James Munby, former President of the Family Division of the High Court. This will be a vital resource for those charged with drafting Second Reading speeches for an MP opposed to assisted dying, with choice soundbites including this zinger:

How confident can we be that the procedures set out in the Bill will be adequate to enable the court to identify and prevent possible abuses and in particular be adequate to detect what may be very subtle external pressures?

My answer is very simple. Only those who believe implicitly in judicial omniscience and infallibility – and I do not – can possibly have any confidence in the efficacy of what is proposed.

Do ministers really want another five or six months of this?

Update, 3 December: Today, with the PMB undergoing painful examination in the House of Lords, the Guardian reported a leaked Labour Party policy memo, the contents of which suggest that, ahead of last year’s general election, the Labour leadership planned how to introduce assisted suicide via a Private Members’ Bill. Well, blow me down with an Order Paper.

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Single Enforcement Body: Yes, kids, we’re almost there!

Posted on August 21, 2024 by wonkypolicywonk

Almost three years ago, in December 2021, I concluded on this blog that, in terms of progress towards the creation of a single enforcement body for workplace rights – a reform I had first proposed 20 years earlier, when a lowly policy wonk at Citizens Advice – we were not nearly there yet, but we were over halfway.

At the 2019 general election, the Labour, Tory and Lib Dem manifestos had all pledged a consolidation of the existing, fragmented enforcement architecture into such a single enforcement body – you wait 18 years for a manifesto pledge to implement your great policy idea, and then three come along at once. A few weeks later, the new Tory Government’s first Queen’s Speech had duly included an Employment Bill to “strengthen workers’ ability to get redress for poor treatment by creating a new, single enforcement body”. And in June 2021 the Government had published a positive response to the high level consultation on the issue it had conducted in 2019 (in response to the 2017 recommendation on enforcement in the Taylor Review of Modern Working Practices).

Sadly, in 2022 we hit horrendous political traffic, followed by a long series of policy speed restrictions. And, given how things have since turned out, my December 2021 blog post should perhaps have made more than a passing reference to the fact that, in September that year, the Labour Party’s New Deal for Working People had pledged to “establish and properly fund a single enforcement body (SEB) to enforce workers’ rights”:

The new body will be given extensive powers to inspect workplaces and bring prosecutions and civil proceedings on workers’ behalf relating to health and safety, minimum wage, worker exploitation, and discriminatory practices.

Labour will ensure that there are enough inspectors employed in the system via the SEB so that they can undertake unannounced inspections and follow up on anonymous reports.

That final point about the number of inspectors is key. As Torsten Bell, until recently the chief executive of the super wonky Resolution Foundation and now the Labour MP for Swansea, notes in his super wonky new book, Great Britain? How we get our future back:

Labour market rules only mean something if they are enforced. Too often they are not.

Responsibility for enforcement is ludicrously spread across six different organisations, overseen by seven different government departments. Nor do the enforcement bodies have enough boots on the ground to be a meaningful deterrent for unscrupulous employers. The International Labour Organisation recommends countries should have one labour market inspector for every 10,000 workers. We manage less than a third of that benchmark – only 0.29, or one for every 34,500 workers.

This system puts the onus on workers themselves to protect their own rights, by going to an employment tribunal. But the workers most likely to have their rights infringed are also those those least likely to bring a case.

If we were remotely serious about labour market rules being enforced, then we would have a single enforcement body cracking down on problems such as bogus self-employment. [And] it should be adequately resourced, doubling the number of inspectors from 900 to 1,800 to present a credible threat to dishonest firms.

Amen to that, and I just wish Torsten had been around between 2000 and 2013, when I researched and wrote a deadly boring series of policy reports, articles and submissions to parliamentary committees, all arguing for “a more pro-active approach to compliance and enforcement” through a single enforcement body – or Fair Employment Agency – but was repeatedly thwarted by the Great Protector of workers’ rights, the TUC (which argued that enforcement is a job for trade unions, not government).

Whatever, in May this year Labour’s Plan to Make Work Pay updated the 2021 New Deal for Working People with a pledge that “Labour will deliver where the Conservatives have failed. We will finally establish a Single Enforcement Body to enforce workers’ rights, including strong powers to inspect workplaces and take action against exploitation.”

Guardian headline, 23 June 2024

A few weeks later, Labour’s manifesto for the General Election included a pledge to “create a Single Enforcement Body to ensure employment rights are upheld”. And on 17 July, in the King’s Speech, the newly elected Labour Government set out its plan to bring forward an Employment Rights Bill to, among (many) other things, “establish a new Single Enforcement Body, also known as a Fair Work Agency, to strengthen enforcement of workplace rights”.

We’ve been here before, of course, and – given the (laudable) breadth and depth of the legislative programme set out in the King’s Speech, and the deplorable state of public finances – I am not counting any chickens. But I do think I can say, with a degree of confidence: yes, kids, it’s been a long, long journey, but we are nearly there.

Suffice to say, if and when we do finally get there, I have a (short) list of things I think should be included in the Fair Work Agency’s remit, such as enforcement of unpaid employment tribunal awards. Yep, I wrote a series of boring reports on that issue, too.

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Zero-hours contracts: To ban, or not to ban?

Posted on August 19, 2024 by wonkypolicywonk

While we await the return of MPs to Westminster to begin work on the new Labour Government’s ambitious legislative programme, including what is set to be a truly humungous Employment Rights Bill, the (very) clever policy wonks at the Resolution Foundation have been trying – and failing – to work out how one of the promised key measures in that Bill might actually work.

Last week, the Foundation’s principal economist, Nye Cominetti, posted on X/Twitter:

Labour plan to give workers on zero-hours contracts a right to a contract with hours reflecting the hours they regularly work (assessed across 12 weeks). Sounds simple, but I’m struggling to guess how this will work in practice. Big questions:

Are ‘regular’ hours the average observed, or the minimum? Will weeks where no work happened be included, or does that disqualify? Will workers have a right to these hours in all weeks, or on average only? Will it still be possible for a worker to have a zero hours week? This matters.

And I would suggest that, if you are a new Labour minister, and even the Resolution Foundation cannot see how your shiny new policy would actually work in practice, then you have a problem.

Extract from Labour’s Plan to Make Work Pay, published 24 May 2024

Part of the problem is that the near-totemic pledge to ‘ban zero-hours contracts’ has mutated somewhat since Labour’s September 2021 New Deal for Working People, in which the ‘right to a contract with hours reflecting the hours they regularly work (assessed across 12 weeks)’ was presented as quite separate to a ban on zero-hours contracts:

Labour will ban zero hours contracts and contracts without a minimum number of guaranteed hours. We will also [sic] ensure anyone working regular hours for twelve weeks or more will gain a right to a regular contract to reflect those hours normally worked.

As I’ve noted elsewhere, by February this year shadow ministers had qualified the proposed ban, limiting it to exploitative zero-hours contracts, without explaining how they plan to distinguish between exploitative and non-exploitative contracts. And, as noted on this blog, in March it emerged from a speech by shadow chancellor Rachel Reeves that the separate right to a regular contract where regular hours have been worked for 12 weeks had now transmogrified into the means by which shadow ministers planned to accomplish the ban. During the General Election campaign, this was explained in a video posted on X/Twitter by Justin Madders, now a business minister:

There’s over a million people on zero-hours contracts. Many of them don’t want to be on them. They don’t know how many hours they will get to work from one week to the next. How can they plan their lives? How can they be sure they can pay the bills or even put food on the table, if they don’t know how many hours they’re going to work?

So we’re going to change the law, so that after 12 weeks in employment, you will be legally entitled to a minimum number of hours each week, based on what you’ve actually done in the previous 12 weeks. That will get rid of the insecurity of zero-hours contracts, give people certainty and a base to work on, and actually make sure that we have a fair workplace for all under Labour’s New Deal for Working People.

However, as I noted in April, this would not amount to a ban on (exploitative) zero-hours contracts, and would most likely benefit only a very small proportion of the some 1.1 million workers currently on a zero-hours contract:

All that is actually on the table is a new right to seek a bit more ‘security’, but only for those workers who already have the rather significant security, in this context, of working regular (and therefore predictable) hours over a sustained period. And, realistically, a great many of those workers will be content enough with that working arrangement to not want to exercise the new right.

But there is no such protection for those who need it most – the far greater number of workers who are being exploited by being given only irregular and unpredictable hours by a rogue employer.

To fully understand why this switcheroo had employment policy wonks like me staring at our screens in disbelief, it’s worth looking back at the origin of the proposed ‘right to a contract that reflects the hours regularly worked’. This was one of several recommendations in an October 2018 report by the Low Pay Commission on ‘one-sided flexibility’, which the Government had requested from the Commission in February 2018 in response to the Taylor Review of Modern Working Practices.

In 2017, while calling for “significant changes to our labour market”, the Taylor Review had concluded that “to ban zero-hours contracts in their totality would negatively impact many more people than it helped.” Indeed, the Taylor Review cited Labour Force Survey evidence that two-thirds of those on zero-hours contracts do not want to work more hours. Which would suggest they are not totally unhappy. Instead, the Taylor Review recommended that “the Government should ask the Low Pay Commission to consider the design and impacts of the introduction of a higher National Minimum Wage rate for hours that are not guaranteed as part of the contract”.

However, in its October 2018 report, the Low Pay Commission rejected the Taylor Review’s proposal of a higher minimum wage rate for any hours that are not guaranteed, and recommended “an alternative package of measures”, including: a right to switch to a contract which reflects your normal hours (over a defined reference period); a right to reasonable notice of work schedule; and compensation for shift cancellation or curtailment without reasonable notice.

Not only were these proposed measures not specifically aimed at workers on zero-hours contracts, but the Low Pay Commission joined the Taylor Review in explicitly rejecting the idea of a ‘ban’ on such contracts, confining the issue to an Appendix to the report.

Furthermore, as Nye Cominetti and his fellow wonks at the Resolution Foundation have been finding, the Low Pay Commission left unanswered a number of questions about how the proposed ‘right to a contract that reflects the hours regularly worked’ might work in practice, including how long the reference and qualifying periods should be (Labour appear to have got their 12-week reference period from the trade union USDAW), and how it might be enforced. And with good reason: the most vulnerable workers are those least likely to risk their job by taking their employer to a tribunal.

In short, Labour ministers such as Angela Rayner and Justin Madders appear to have realised, somewhat belatedly, that the ban on exploitative zero-hours that they have repeatedly promised to voters is neither practicable nor desirable. And, to cover their retreat, they have grasped at the similarly promised but quite separate ‘right to a contract that reflects the hours regularly worked’, to use as a political fig leaf.

Which is fine. That’s the kind of thing politicians do. But if Rayner and Madders genuinely think this will “get rid of the insecurity of zero-hours contracts”, they are deluded.

[Update, 30 August: It may or may not be significant that a BBC news report today, about the flexible working provisions of the coming Employment Rights Bill, refers to Labour having pledged to “restrict the use of zero-hours contracts”. If this is based on what the Department for Business & Trade briefed to the journalist, then this could be the first sign of a retreat from use of the B-word.]

Posted in Workers' rights | Tagged , , , | Leave a comment

Zero-hours contracts: Labour’s zero-sum game

Posted on April 1, 2024 by wonkypolicywonk

In February, I questioned whether Labour shadow ministers have any idea how to implement their near totemic pledge – set out in their New Deal for Working People – to “ban zero-hours contracts and contracts without a minimum number of guaranteed hours”. And in doing so, I noted that, in a recent Financial Times column pushing back against media reports that Keir Starmer is under pressure to water down the laudably ambitious New Deal document ahead of the approaching General Election, deputy leader Angela Rayner had possibly qualified the pledge by stating that Labour would ban only “exploitative” zero-hours contracts. But how this would be done remained a mystery.

Then, early last week, the eagle-eyed Darren Newman reported that, when delivering her Mais Lecture at the Bayes Business School on 19 March, shadow chancellor Rachel Reeves had not only mirrored Rayner’s apparent qualification of the pledge, but had gone on to explain how this qualified ‘ban’ would be implemented:

We will ban exploitative zero hours contracts, by giving all workers the right to a contract that reflects the number of hours they regularly work, based on a twelve-week reference period.

As Darren noted, “the suggestion here is that the right to a regular contract where regular hours have been worked for 12 weeks [pledged in the New Deal document] is not a separate right in addition to the ban on zero-hours contracts – it is the method by which the ban on ‘exploitative’ zero-hours contracts is to be accomplished”. And, in a subsequent interview on Sky News, Labour Party chair Anneliese Dodds appeared to confirm what would amount to a significant policy shift.

Darren concluded that “Labour needs to think about how to convert slogans into legislation that actually works, [and] perhaps what Rachel Reeves said is part of that process. On the other hand, it might have been a typo.”

Well, we didn’t have to wait long for confirmation that it was not a typo. On Thursday morning, during an extended interview by the BBC R4 Today programme’s Nick Robinson, ahead of Labour’s launch of their campaign for the local elections on 2 May later that day, Angela Rayner was (eventually) very clear:

Nick Robinson (at 2:18:21): You used to say you’d ban all zero-hours contracts. You don’t any more, do you?

Angela Rayner: Well, we will ban zero-hours contracts …

Nick R: But not all of them.

Angela R: Well, there’s different ways you can do it, you can aggregate over 12 weeks, we’re in consultation and we’re working with the sectors including with the workers that says we do not want exploitative contracts where people are working regular hours but are [on] a zero-hours contract.

Nick R: So, people who want to work [on a zero-hours contract] will still be able to work [on a zero-hours contract]. A change of approach?

Angela R: If people are working a flexible contract, their contract will be be able to specify that, but what we won’t have …

Nick R: So, you won’t ban zero-hours contracts?

Angela R: Let me be clear, Nick. What we won’t have is people working regular hours who are given a zero-hours contract and no security. We’re calling time on that and I think most people recognise that.

Nick R: Understood.

Angela R: You can’t get a mortgage, you can’t get credit, if you’ve got a contract that doesn’t give you any hours and it doesn’t work for people.

So, it is now very clear: the incoming Labour government’s Bill to implement the New Deal for Working People will not include a ban on “zero-hours contracts and contracts without a minimum number of guaranteed hours”. It may include the New Deal‘s new right to a regular contract where regular hours have been worked for 12 weeks (one of several recommendations by the Low Pay Commission in a December 2018 report on one-sided flexibility), but that would not amount to a ban on exploitative zero-hours contracts, and would most likely benefit only a very small proportion of the 1.1 million workers currently on a zero-hours contract.

In short, the headline policy is a sham, and always was a sham. All that is actually on the table is a new right to seek a bit more ‘security’, but only for those workers who already have the rather significant security, in this context, of working regular (and therefore predictable) hours over a sustained period. And, realistically, a great many of those workers will be content enough with that working arrangement to not want to exercise the new right. But there is no such protection for those who need it most – the far greater number of workers who are being exploited by being given only irregular and unpredictable hours by a rogue employer.

Furthermore, as Darren Newman noted in his blog of 19 March, there is a very real risk that telling employers that, if they give a worker regular hours for 12 weeks, then they will have to write that into the worker’s contract will create a perverse incentive for such employers to offer only irregular and unpredictable hours. Doh!

Whatever, politics aside, this is no big deal. Not for the first time, Labour in opposition have made policy by slogan, without stopping to think how they might turn the slogan into law once in government. So, there never was going to be a ‘ban on zero-hours contracts’. But, as I have said many, many times over the past decade, ever since people in Labour first started talking about banning zero-hours contracts, the misuse of zero-hours contracts by rogue employers is best seen as a symptom, not the disease – which is the ability of rogue employers to exploit vulnerable workers with near impunity, including by the misuse and abuse of flexible working arrangements. Indeed, as the Low Pay Commission noted in its December 2018 report, “the problems associated with one-sided flexibility go wider than the phenomenon of zero-hours contracts”.

In terms of treating the underlying disease, there are far more important pledges in Labour’s New Deal for Working People than the (never practicable) ‘banning’ of zero-hours contracts, not least the rarely mentioned pledge – which was also in Labour’s 2019 general election manifesto – to “establish and properly fund a single enforcement body to enforce workers’ rights” (see page 11).

As previously noted on this blog, at the 2019 general election the Conservatives (and even the Liberal Democrats) similarly pledged to create such a new enforcement body, but Boris Johnson never found time for his repeatedly promised Employment Bill, and Liz Truss and Rishi Sunak … well, you know that story. We’ll just have to hope that the coming Labour government sticks to its word on that pledge, at least.

Posted in Workers' rights | Tagged , , , | 2 Comments

Toxic Truss and the Chamber of Horrors

Posted on March 19, 2024 by wonkypolicywonk

Since Friday, there’s been some argy-bargy between MPs over which party – the Conservatives or Labour – was responsible for “talking out” an attempt by the shortest-serving Prime Minister in history, Liz Truss, to progress her Private Members’ Bill (PMB) to clarify the meaning of “sex” in the Equality Act 2010, stop the social transitioning of children in schools, and ban healthcare providers from prescribing puberty blockers and cross-sex hormones to anyone under 18 years old.

Truss’s Health & Equality Acts (Amendment) Bill was strongly supported by sex-realist campaign groups such as Sex Matters, but was third on the list of PMBs to be debated on Friday, after the Animal Welfare (Import of Dogs, Cats & Ferrets) Bill introduced by Selaine Saxby, and the Public Procurement (British Goods & Services) Bill introduced by Sarah Champion. And, on what are known as PMB Fridays in the House of Commons, a PMB has to successfully complete its Second Reading by 2:30pm to progress to the next stage of parliamentary scrutiny (Committee stage).

However, after 12 Conservative and nine Labour MPs unnecessarily spent almost four hours debating Saxby’s Bill, despite the Bill already having the enthusiastic support of both the Government and the Labour Opposition, there wasn’t even time to complete the Second Reading of Champion’s Bill by 2:30pm. So Truss’s Bill will now fall to the bottom of the (long) priority list of PMBs to be debated on future PMB Fridays, with zero chance of becoming law.

In truth, Truss’s Bill never had much, if any, chance of becoming law, as last November Truss had come only 18th in the annual ballot that gives MPs the chance to be one of the first 20 MPs to introduce a PMB (out of the more than 400 MPs who entered the ballot), whereas Saxby had come 6th, and Champion had come 12th. Only the top seven MPs in the ballot are guaranteed a full Second Reading debate on their PMB, and without Government support only the top 10-15 PMBs have any realistic chance of becoming law. (Last year, 16 PMBs became law, but many of these were a Government hand-out Bill masquerading as a PMB.)

But that didn’t stop Tory MP Sally-Ann Hart accusing Labour of “talking out” Truss’s Bill, saying Labour has “no interest in safeguarding children against extreme trans ideology”. And it didn’t stop Labour’s Sarah Champion posting a short film on social media in which she accused government ministers of getting Tory MPs to “talk and talk and talk and talk and talk” to prevent her own Bill from progressing. To which Tory MP Jackie Doyle-Price responded: “Come off it, Sarah, you know full well it was your benches going long to prevent any discussion of Liz Truss’s Bill”. And then Sarah Champion hit back with: “Jackie, check Hansard x”.

So, who is right? Well, I checked the Hansard record of Friday’s debates and, as the following chart shows, in the four-hour debate on Selaine Saxby’s Animal Welfare Bill, 12 Tory MPs spoke for a total of 99 minutes (an average of 8m 15s), and nine Labour MPs spoke for a total of 136 minutes (an average of 11m 20s). And, of the 31 (short) interventions, 24 were by a Labour MP, and seven by a Tory MP.

The longest speech (34 minutes) was by Labour shadow minister Steve Reed, while three other Labour MPs – Ashley Dalton, Seema Malhotra and Maria Eagle – collectively spoke for almost an hour. And, as well as making a four-minute speech, Sarah Champion made four interventions, including one in which she used up precious time to tell MPs that her brother once had a ferret called Oscar:

Then, in the (curtailed) debate on Sarah Champion’s Bill that followed, five Labour MPs spoke for a total of 57 minutes (an average of 11m 24s), and one Tory MP spoke for two minutes. Of the seven interventions, four were by a Labour MP, and three by a Tory MP. And, at the conclusion of the debate, one Tory MP made a point of order about Labour MPs ‘talking out’ Truss’s Bill.

So, overall, 13 Tory MPs talked and talked for a total of 101 minutes (that is, 34% of Friday’s debating), while 14 Labour MPs talked and talked and talked and talked for a total of 193 minutes (66% of Friday’s debating). Because the fact of the matter is that, for different reasons, neither the Government nor the Labour Opposition wanted MPs to debate Toxic Truss’s PMB. Government ministers such as Kemi Badenoch want to keep some or all of the measures in Truss’s PMB back as manifesto pledges in the approaching General Election (or for their own Tory leadership campaigns), while Labour shadow ministers are all over the place on the issue and would just like to keep their heads where they’ve had them for the last few years: buried deep in the sand.

Welcome to the Chamber of Horrors.

Posted in Democracy, Sex & Gender | Tagged , , | Leave a comment

ET fees: my response to the MoJ consultation

Posted on February 28, 2024 by wonkypolicywonk

Earlier this month, on this blog, I posted my initial thoughts about the surprisingly-timed Ministry of Justice consultation on Employment Tribunal (ET) fees, launched on 29 January, as well as some further thoughts and my proposal for an alternative fees regime that would better protect access to justice while raising more money for the Ministry.

In short, given the dire state of public finances and continuing uncertainty about the precise location of the Money Tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution towards the annual £80m cost of that system. However, if there is to be a fees regime, then all users of the ET system – including respondent employers and each of the claimants in a multiple claimant case – should pay a fee, not just single claimants. And that would allow for a lower level of fee, and/or more case-type exemptions, and/or greater total fee income for HMCTS.

Earlier this week, the TUC published a joint statement with 47 other organisations “against Employment Tribunal fees”, the clear implication being that the 48 organisations oppose not just the modest fees regime proposed by the Ministry of Justice last month, but any ET fees regime. On principle, or something.

My response on X (formerly Twitter) to the joint statement soon had one of the many sanctimonious twerps at the TUC trawling through my X/Twitter feed all the way back to early 2014, when we still had the choice between “stability and strong government” with David Cameron/Theresa May/Boris Johnson/Liz Truss/Rishi Sunak or “chaos with Ed Miliband”, I was busy documenting the impact of the hefty ET fees regime introduced in July 2013, and the sanctimonious twerp was a journalist covering the City of London.

Whatever, the TUC’s joint statement did at least remind me that I hadn’t yet submitted my response to the Ministry of Justice consultation. So what follows is what I submitted to the Ministry yesterday.

1. Do you agree with the modest level of the proposed claimant issue fee of £55, including where there may be multiple claimants, to ensure a simple fee structure?

No. I accept, as the Supreme Court noted in 2017 in the UNISON judgment, that “Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice”. And I accept that a £55 claimant fee would not create an intolerable barrier to justice – to my mind, if a would-be claimant does not qualify for remission, and is deterred by a £55 fee, then perhaps the claim is not worth bringing (at an average cost to taxpayers of £2,400).

However, with the introduction of mandatory Acas early conciliation from 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with a taxpayer-funded opportunity to resolve the issue, for free. So, if workers are to pay a fee to pursue an ET claim, employers should also pay a fee to defend an ET claim.

Furthermore, I see no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case (MCC) should pay only one £55 fee between them. All such MCC claimants are users of the ET system, and if their case is successful they will all benefit accordingly. In 2022/23, the 2,579 MCC cases had an average of 21.3 claimants, so the average MCC claimant would have paid just £2.58 towards a £55 fee.

I am aware that, in 2011-13, the TUC and others cited Chapter 6 of the HM Treasury Handbook ‘Managing Public Money’ to argue that it would be wrong to charge each MCC claimant the same fee as single claimants, because that would lead to HMCTS ‘making a profit’ on large MCC cases. However, with a fee set at just £55, there would need to be 44 or more claimants for an MCC case to generate total fee income in excess of the £2,400 average cost of processing an ET case, and as already noted in 2022/23 the average number of claimants in an MCC case was 21. So, this minor issue could be easily addressed by, for example, a cap on the total amount of fees paid in MCC cases. However, to my mind there is a strong, principled case for making MCC cases an exception to the ‘general principles’ set out in the HM Treasury Handbook.

Assuming (somewhat crudely, but I don’t think it matters much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And charging all those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee would make it much easier to ensure that the fees regime does not create a barrier to justice (by lowering the level of the fee, and perhaps by widening the scope for fee exemptions to cover simple wage claims), while also delivering a more substantial contribution towards the £80m cost of the ET system.

For example, if the fee for single claimants, MCC claimants and respondent employers was set at an even more modest £35, and the fee for EAT appellants at the proposed £55, then – after allowing for remission on the same basis as set out in the consultation’s Impact Assessment – the fees regime would deliver total net annual fee income of £4m, more than twice that of the proposed, claimants-only regime, and equivalent to 5% of the £80m cost of the ET system.

2. Do you agree with the modest level of the proposed EAT appeal fee?

Yes. For the reasons given in my response to Q1, above, the proposed EAT appeal fee does not seem unreasonable to me.

3. Do you believe this proposal meets the three principles set out in the consultation document?

Yes, I accept that the proposed fees regime meets the principles of Affordability, Proportionality and Simplicity. However, for the reasons set out in my reponse to Q1, above, the proposed fees regime is not fair, as it does not apply to all ‘users of the ET system’. To my mind, any ET fees regime should also meet the principle of Equity. And the principle of Equity demands that, if there is to be a fees regime, then all users should pay a fee (subject to remission and case-type exemptions).

4. Do you consider that a higher level of fees could be charged in the ET and/or the EAT?

No. To meet the principles of Affordability and Proportionality, the level of fees should be as low as is consistent with the objective of relieving “some of the cost to the general taxpayer”. And, as set out in my response to Q1, above, charging a fee to all users of the ET system, rather than only some of them, would allow for the fee level to be lower than the proposed £55.

5. Are there any other types of proceedings where similar considerations apply, and where there may be a case for fee exemptions?

Yes, I believe there is a strong case for exempting straightforward, low-value claims, such as wages claims. Indeed, there is case for such claims being resolved not by the ET system, but by the proposed Single Enforcement Body.

6. Are you able to share your feedback on the different factors that affect the decision to make an ET claim, and if so, to what extent? For instance, these could be a tribunal fee, other associated costs, the probability of success, the likelihood of recovering a financial award, any other non-financial motivations such as any prior experience of court or tribunal processes etc.

I do not feel able to add to what is set out in the consultation paper.

7. Do you agree that we have correctly identified the range and extent of the equalities impacts for the proposed fee introductions set out in this consultation?

Yes.

Posted in Employment tribunals, Justice | Tagged , | Leave a comment

Cochlear implants: an update from Wonky Junior

Posted on February 25, 2024 by wonkypolicywonk

Today is International Cochlear Implant Day. If you’ve not heard of cochlear implants, they are an amazing technology that enables profoundly deaf children and adults to ‘hear’ sound, and so learn to communicate primarily by speech (often supplemented by lip-reading and use of sign language). The technology and medical science involved is really quite extraordinary.

My son Sam, now 24, has been a cochlear implant user since he was two, having been left profoundly deaf by severe pneumococcal meningitis in infancy. And, six years ago, I wrote on this blog about the difference that Sam thought having cochlear implants had made to his life so far. This included being able to get matey with Turkish pirates, swap hospital stories with an Olympic champion, become something of a dance floor legend (much like his Dad, tbh), and hear a stadium full of Harlequins fans moaning about how useless Harlequins are as we watch them lose, again.

That year, 2018, Sam was in his final year at school (the residential deaf school Mary Hare, near Newbury). So the six years since have seen some big changes in his life. And many of these changes were facilitated – if not made possible – by Sam’s cochlear implants enabling him to use speech as his primary means of communication. Because, while Sam is also a fluent user of Sign Supported English, that’s not much help if the person he’s trying to talk to does not sign. And only 0.02 of the UK population do sign.

Perhaps the biggest change is that Sam has abandoned his previous allegiance to Harlequins – our local Premiership rugby team – in favour of Saracens, about three million miles away in north London. But this is not because he is fickle. In 2019, Sam joined the disability rugby programme run by Saracens Foundation, and was soon developing essential life skills, improving his communication skills, and emerging as a leader and role model to other disabled young adults.

Sam’s personality, commitment and hard work – together with his shameless switch of allegiance to Saracens – soon secured him a staff role on the Foundation’s Special Educational Needs holiday camps, helping children with learning difficulties and/or physical disabilities reap the mental and physical benefits of sporting activity.

Sam working at a Saracens Foundation SEN holiday camp in St Albans

With the active support of Saracens stars such as Jackson Wray, Sean Maitland and Ella Wyrwas, Sam continued to blossom, and in early 2023 he became an assistant coach of the newly-launched Saracens Foundation junior rugby programme, working with disabled children aged 8-13.

By then, Sam’s volunteering with Ben Lampert of Brentford FC Community Sports Trust had led to his appointment as a casual assistant sports coach, helping Ben deliver multi-sports sessions in west London primary schools, as well as sports days, holiday camps and outings. And all this while playing mixed ability rugby with Surrey Chargers at Chobham RFC on Saturdays.

Sam with Surrey Chargers teammate Jack
Sam with Surrey Chargers teammate Will

Along the way, Sam has met and downed a beer or two with rugby legends such as Owen Farrell, Jamie George, Maro Itoje and Billy Vunipola, been interviewed on stage by David ‘Flats’ Flatman at the Saracens Foundation annual fundraising dinner, completed Level 1 and 2 coaching qualifications, scored a try for Surrey Chargers and enjoyed the craic at the International Mixed Ability Rugby Tournament in Cork, starred alongside Marios and Memnos Costi and Steph Hanratty in an episode of the TV series Deaf Away Days, run several 10Ks to raise money for the Cochlear Implanted Children’s Support Group, played on the Twickenham pitch with Project Rugby during half-time of the Gallagher Premiership final between Leicester and Saracens, and attended Jackson Wray’s testimonial dinner at the Oxo Tower restaurant. And he’s loved every moment.

With Ella Wyrwas after Ella and Saracens Women won the Premier 15s final v Exeter, 2022
With Jackson Wray, at Sale’s AJ Bell Stadium
With Owen Farrell at Jackson Wray’s testimonial dinner, Oxo Tower, April 2023
“Deaf Away Days” at Saracens v Northampton

It goes without saying that all of this has made me and Sam’s mum, Joanna, very proud. And perhaps my favourite moment came last summer, when Sam was nominated and then shortlisted for the Rugby Ambassador award at the Premiership Rugby Community Awards 2023, in my old stamping ground, the House of Commons. Sam didn’t win, but then one of the values that Sam has acquired through his participation in the Saracens Foundation disability rugby programme – and which he now works to instil in others – is that it’s not really the winning that counts.

No doubt Sam would be having a great life without access to sound, as a user of sign language only. But Joanna and I are deeply grateful to the numerous surgeons, doctors, audiologists, speech & language therapists, and teachers of the deaf for giving Sam the opportunity to enjoy the world in ways that might otherwise not have been available to him. And we’re immensely grateful to Sean Maitland, Ella Wyrwas, Jackson Wray, Charlie White, Ryan Eaton, Paul Tanner and all the staff and volunteers at Saracens Foundation for helping Sam make the very most of that opportunity.

No one appreciates all this amazing support more than Sam. So on 7 April, Sam will run the London Landmarks Half Marathon to raise money for Saracens Foundation. And I’d be chuffed if you could sponsor Sam by visiting his fundraising page. (Suffice to say, I will not be running the Half Marathon with Sam – I’m more a Full Mars Bar man, these days.)

With Sean Maitland (Saracens, Scotland & British Lions) in the StoneX stadium
Sam at the Premiership Rugby Community Awards, House of Commons, July 2023
With Topsy Ojo at the Premiership Rugby Community Awards 2023
With David ‘Flats’ Flatman at the StoneX
Posted in Disability | Tagged , | 1 Comment

Employment Tribunal fees: How to fee, *that* is the question

Posted on February 5, 2024 by wonkypolicywonk

Last week on this blog, I set out my initial response to the Ministry of Justice proposal to introduce modest fees for Employment Tribunal (ET) claimants and Employment Appeal Tribunal (EAT) appellants. In short, given the dire state of public finances, and continuing uncertainty about the precise location of the money tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution to the (not insignificant) cost of that system. The challenge is to devise a fees regime that is (a) fair and (b) does not create a barrier to justice.

In other words, the Hamletian question is not ‘to fee, or not to fee’, but how to fee.

I did not say – perhaps because I thought it did not need saying – that the design of the fees regime has to meet (a) and (b), while also delivering, in terms of fee income, a significant contribution to the overall cost of the ET system. Otherwise, one might wonder whether introducing a fees regime is worth the candle – a point well made by one employment lawyer last week. Martin Pratt of RWK Goodman was quoted in City AM:

While it is good that the Government has acknowledged that the prior excessive tribunal fees of up to £1,200 did not strike the right balance, I don’t think that the tiny dent of £1.3m-£1.7m that the new, much reduced, £55 fees will make in the £80 million annual cost of the Employment Tribunals make the exercise worthwhile.

Anyway, I like a challenge. And, to my mind, it really is not that difficult to devise a modest fees regime that (a) is fair to users, (b) does not obstruct access to justice, and (c) delivers significantly more fee income to the Ministry of Justice than the unfair fees regime set out in the Ministry’s proposal. This is not rocket science. As Tom Hanks would say, if we can send humans to the moon, we can devise a fair, just and effective ET fees regime. (And if you don’t believe Tom Hanks would say such a thing, then you need to go watch his Moonwalkers, at the Lightroom in King’s Cross until 21 April.)

As I noted last week, the Ministry’s proposed fees regime is unfair for two, simple reasons.

Firstly, with the introduction of mandatory Acas early conciliation in 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with an opportunity to resolve the issue, at taxpayers’ expense. So, if workers are to pay a (modest) fee to pursue an ET claim, employers should also pay a (modest) fee to defend an ET claim.

Secondly, there is no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case should pay only one £55 fee between them. They are all users of the ET system, and if their case is successful they will all benefit accordingly. Maybe they should each pay a smaller fee than single claimants, but it is simply unfair that they should be able to use the ET system for a few pounds or even pennies each, while single claimants have to fork out £55. (In 2022/23, the 2,579 multiple claimant cases had an average of 21.3 claimants, so the average claimant in a multiple claimant case would have paid just £2.58 towards a £55 fee.)

Assuming (somewhat crudely, but I don’t think it matters that much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 (the year on which the Ministry bases the Impact Assessment of its proposal), there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And you don’t have to have won the Fields Medal to recognise that charging all of those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee makes it much easier to ensure that the fees regime does not create a barrier to justice, while also delivering a more generous contribution to the Ministry’s balance sheet.

For example, the fee for single claimants, respondent employers and EAT appellants could be set at a very modest £35 (the cost of one day’s entry to Alton Towers), and the fee for MCC claimants at £20, and – after allowing for remission on the same basis as set out in the Ministry’s Impact Assessment – the regime would deliver total net annual fee income of £3.2 million, almost twice that of the Ministry’s proposed, claimants-only regime.

What’s not to like? (That’s a genuine question, btw – please do post your answer below.)

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