14 September 2017

Since the referendum, the Tories have vowed not to abolish the workers' rights currently maintained in EU law, such as the Working Time Directive, stronger holiday pay, and health and safety legislation. But despite being called upon to put their money where their mouths are and explicitly protect workers' rights in their EU (withdrawal) Bill, the government has refused to secure employment laws past the day one of post-Brexit Britain. On Monday (11 September 2017), Labour MPs made their case for protecting workers' rights and put forth suggestions to improve the Bill during its second House of Commons reading.

Henry VIII clauses

One of the biggest threats to workers' rights is the so-called Henry VIII clauses that have been inserted into the EU (Withdrawal) Bill. These clauses ostensibly allow Conservative MPs to transfer EU law directly to UK law without debate in parliament, but there is no mechanism in the Bill to prevent the government from making changes to those laws, either during or after the Brexit process. Thus the government has given itself sweeping powers to change the law as it pleases, without democratic scrutiny.

The offending sections of the Bill are Clauses 7 and 9, which read: a Minister "may by regulations make such provision as the Minister considers appropriate"; and "Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act)."

Several Labour MPs pointed out that the Tories cannot be trusted with unmitigated power over regulations, including workers' rights, when they have a track record of weakening employment law and have historically opposed the strengthening of rights through the EU.

Labour MP Pat McFadden said: "The stated purpose [of the Bill] is to provide the country with continuity and certainty on what our statute book will contain on the day when we leave. Yet the purpose of leaving the EU is to depart from the laws incorporated by the Bill, otherwise there would be no point. So the legal certainty that the Bill aims for can last no longer than day one itself.

"Those who have been the most vociferous opponents of any regulation that has stemmed from the EU, including members of the Cabinet who have attacked its laws and protections, such as those for people at work, now profess to agree to all the regulation that they previously detested."

We can't trust the Tories with our rights

Indeed, McFadden's colleagues provided evidence to illustrate the Tories' true regard for workers' rights. Geraint Davies pointed out that the government and Beecroft report "pooh-poohed" the workers' agency directive; Christian Matheson highlighted a Private Members' Bill already tabled by Conservative MPs to remove the Working Time Directive; and Lloyd Russell-Moyle reminded parliament that the government acted illegally in its implementation of employment tribunal fees that limited access to justice for workers, as confirmed by the Supreme Court this summer.

Labour MP Nick Thomas-Symonds said: "I will simply never be able to trust Tory Ministers with things like workers’ rights, environmental protections and consumer rights. Let us take workers’ rights as an example. The Prime Minister has promised to retain all our workers’ rights as long as she holds office. In light of recent events, I hardly think that is particularly comforting, but in case we have any other doubts, let us just see what the then Tory Employment Minister, currently the International Development Secretary, said during the referendum campaign. She gave a speech at the Institute of Directors on 17 May 2016, about a month before the referendum. What does she want to do? To quote her, she wants to 'halve the burdens of the EU social and employment legislation'."

Melanie Onn quoted the Transport Secretary, who said in 2014 he wishes to "slay health and safety culture and reminded parliament that Theresa May had "said that the Labour Government’s adoption of the social chapter showed their weakness in standing up to trade unions.

"According to the Prime Minister, the only reason a government would ensure that part-time workers are treated the same as full-time workers, ensure that no one is made to work more than a maximum of 48 hours a week, or secure leave for pregnant women, is if a trade union made them do it.

Onn also referred the House of Commons to Shadow Brexit Secretary Keir Starmer's speech last week, in which he gave evidence of the Tories' approach to workers' rights and their likely removal following Brexit.

On 07 September 2017, he said: "In June 2014, the current Foreign Secretary called for an end to 'back-breaking' employment regulations, specifically the collective redundancies directive ... And the International Trade Secretary ... wrote: 'To restore Britain’s competitiveness we must begin by deregulating the labour market. Political objections must be overridden. It is too difficult to hire and fire and too expensive to take on new employees. It is intellectually unsustainable to believe that workplace rights should remain untouchable while output and employment are clearly cyclical.'"

Human rights

In further evidence of the government's ideological approach to the rights of its people, it recently announced it would withdraw from the EU Charter of Fundamental Rights.

Labour MP Tulip Saddiq described this as "at best, problematic, and at worst, actively contemptuous of the rights that protect all aspect of citizens' lives".

"I would like to know which rights in particular the Government object to," she stated. "Is it the right to life, or the prohibition of torture and degrading treatment and punishment? Perhaps the government take issue with the charter’s codification of equality rights, or perhaps the Secretary of State has a new-found disregard for privacy laws. Paying lip service to human rights is no guarantee of human rights, and introducing legislation that cannot be properly scrutinised is no way to govern people’s lives. The explicit disregarding of the charter risks the rights of working people," she warned.

Lords' Constitution Committee: Bill is "unacceptable"

Pat McFadden raised in the House of Commons that the government has been claiming they have the support of the House of Lords Constitution Committee for their sweeping Henry VIII powers. Even just last week, the Prime Minister told parliament her approach was "endorsed" by the Committee.

But in fact the Committee described the powers as "unacceptable", saying: "The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between parliament and government."

It continued: "...the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency ... [and the] number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the government could draw.

"They would fundamentally challenge the constitutional balance of powers between Parliament and government and would represent a significant—and unacceptable—transfer of legal competence."

The Bill does not protect workers' rights after Brexit

Several MPs highlighted that, as it currently stands, the Bill allows for significant changes to be made even after the UK has left the EU without parliamentary scrutiny. Labour called for employment rights to be brought into primary legislation to ensure that any future changes must be debated and voted on in the House of Commons.

Lloyd Russell-Moyle explained: "Much of EU law has been brought into UK law as statutory instruments. Those statutory instruments are underpinned by EU law, which includes an ability to fine governments for overstepping that law. If EU oversight is removed but the statutory instruments continue to exist, they will be weak to amendment through the negative procedure. That puts people’s rights to things such as TUPE and the working time directive at risk. Clearly, therefore, those statutory instruments should have additional statutory underpinning such that they cannot be removed using the negative procedure."

Improving the Bill

Labour MPs called on the government to put in place extra protections for workers' rights. Caroline Flint suggested that the government should provide a "filter to separate the routine, or the modest, from the more important changes that governments may wish to make in the coming years" using statutory legislation. This would mean that large changes would be prevented from being passed without parliamentary debate. She suggested such a filter could be provided by the establishment of a scrutiny Committee.

Geraint Davies offered a three-part process to ensure the government goes about Brexit in a fair way. "The changes are: first, to ensure that the Bill enshrines the continuation of rights and protections in EU law; secondly, to have enforcement mechanisms in place for those rights which will be taken away when the EU institutions are taken away; and thirdly, to state in the Bill that the measure is not intended to impact on human rights and to ensure that, in any case where our rights and protections are challenged, they are referred to a Select Committee process."

Outcome of the debate

The Bill was passed by a slim majority of 326 votes to 290, while Labour's amendment to block the legislation was defeated by 318 votes to 296.

Join us to debate this issue at our forthcoming Post-Brexit employment law events At our forthcoming conferences in Liverpool and Glasgow, some of the UK's leading academics, lawyers and campaigners will discuss the threats to employment law posed by Brexit, as well as proposing ideas for how workers' rights can be protected and even improved upon during the negotiations with the EU, as well as in future trade deals. Select the conference location below to read more and book your place.

Glasgow: 16 November 2017

Liverpool: 30 November 2017