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Draft Employment Rights (Amendment) (EU Exit) Regulations 2019

Draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018

Draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2018

Debated on Wednesday 13 February 2019

The Committee consisted of the following Members:

Chair: Mr Nigel Evans

† Ali, Rushanara (Bethnal Green and Bow) (Lab)

† Baron, Mr John (Basildon and Billericay) (Con)

† Bradshaw, Mr Ben (Exeter) (Lab)

† Cadbury, Ruth (Brentford and Isleworth) (Lab)

† Eagle, Ms Angela (Wallasey) (Lab)

† Fitzpatrick, Jim (Poplar and Limehouse) (Lab)

† Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

† Hughes, Eddie (Walsall North) (Con)

† Madders, Justin (Ellesmere Port and Neston) (Lab)

† Mercer, Johnny (Plymouth, Moor View) (Con)

† Morris, Anne Marie (Newton Abbot) (Con)

† O'Brien, Neil (Harborough) (Con)

† Smith, Nick (Blaenau Gwent) (Lab)

† Stephens, Chris (Glasgow South West) (SNP)

† Stewart, Bob (Beckenham) (Con)

† Tolhurst, Kelly (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)

† Vickers, Martin (Cleethorpes) (Con)

Nina Foster, Committee Clerk

† attended the Committee

Twelfth Delegated Legislation Committee

Wednesday 13 February 2019

[Mr Nigel Evans in the Chair]

Draft Employment Rights (Amendment) (EU Exit) Regulations 2019

With this it will be convenient to consider the draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019, the draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018 and the draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2018.

It is a pleasure to serve under your chairmanship, Mr Evans. The draft statutory instruments were laid before the House on 14 January 2019 and on 31 October 2018 respectively. They are part of a package of measures that the Government have promised to introduce to make sure that we are prepared in the event that we leave the EU without a deal. It is important to remember throughout the debate that the changes will not be needed if a deal is secured.

The statutory instruments under consideration amend employment law to reflect the UK’s withdrawal from the EU. New directives agreed in the EU are transposed into UK law. The act of the UK leaving the EU therefore does not remove those rights, which are already in UK law. By passing the European Union (Withdrawal) Act 2018, Parliament gave the Government the ability to ensure that necessary changes can be made to keep the statute book in proper working order.

I can confirm that the SIs before the Committee make only minor changes to language to ensure that existing regulations will reflect the fact that the UK is no longer a member of the EU. Those changes are necessary to ensure that the statute book is accurate and clear. It is important that businesses, employees and citizens have clarity regarding their rights and responsibilities.

During the passage of the 2018 Act, some hon. Members raised concerns about the potential for the Government to use some of the powers granted by that Act to make more fundamental changes. I assure the Committee that the Government are not making any changes to employment rights or employment policy through these regulations. The Prime Minister, the Business Secretary and many other colleagues have been clear that there will be no roll-back on workers’ rights when we leave the EU.

Does the Minister not concede that, as a result of the regulations, in the event of no deal, employees and workers in the United Kingdom will not be able to set up a European works council?

If the hon. Gentleman allows me to make some progress, I will come to that point. We should aim not to sensationalise the issue, but to provide clear answers to the public. It is our responsibility to be the guide during this unprecedented time.

The Committee will be aware of the programme of reforms that the Government are already implementing to strengthen workers’ rights and we are delivering on our commitments through the “Good Work Plan”. We do not need to be in the EU to have strong workers’ rights or to enhance them in the future. Indeed, we will continue to deliver the good work reforms after the UK has left the EU.

Far from being content with EU minimum standards, the UK has gone beyond them in a number of areas. Our maternity entitlements are nearly three times greater than the EU standard. In the UK, we offer 52 weeks of maternity leave, of which 39 weeks are with pay; the EU requires only 14 weeks of paid leave. We give fathers and partners the statutory right to paternity leave and pay—an entitlement that the EU is only now starting to consider. We allow eligible parents to share paid leave and thus caring responsibilities in the first year following birth or adoption; the EU does not provide for that right. We have given all employees with 26 weeks’ qualifying service a statutory right to request flexible working; EU law allows workers to make a request only if they are returning from parental leave. One of the EU’s own agencies, Eurofound, ranks the UK as the second best country in the EU for workplace well- being, behind only Sweden, and the best for workplace performance.

In our future outside the EU, the political declaration on our future relationship states that we will build on the withdrawal agreement commitment not to reduce our shared standards or regress from existing EU legislation. As my right hon. Friend the Prime Minister said in the House yesterday, we are prepared to commit to asking Parliament whether it wishes to follow suit whenever the EU changes its employment standards. I hope that that provides assurance to the Committee that the Government are absolutely committed to protecting and enhancing workers’ rights.

The statutory instruments are an important and necessary part of the work to protect rights in the event that we leave the EU without a deal. Of course I hope that the regulations will not need to come into effect, and that an agreement can be reached with the EU so they can be revoked.

Will the Minister explain why the Government initially thought that the regulations should be subject to the negative procedure and not debated at all? We are obviously pleased that the Government changed their mind when the European Statutory Instruments Committee asked for the change.

The statutory instruments that were laid subject to the negative procedure, which was changed by that Committee, relate particularly to Northern Ireland. They were upgraded to be debated, so we have the opportunity to debate all four sets of regulations in Committee today.

Although I hope that the regulations will not need to come into effect, because I hope that we can reach an agreement, in the event of no deal it will be vital that they are enacted. Failure to pass these largely technical regulations would result in uncertainty about workers’ rights and employers’ obligations, which could lead to disruption for business and citizens and an increased risk of litigation, which is in no one’s interest.

Against that background, I will explain one set of provisions about which hon. Members may have concerns. The Employment Rights (Amendment) (EU Exit) Regulations 2019 make changes to the rules on European works councils. Businesses and trade unions in the UK value the opportunity for employee engagement and consultation that the councils provide, and the Government recognise and encourage those benefits. However, withdrawing from the EU without a deal will mean that the UK is no longer covered by EU rules on European works councils.

In that scenario, it would be for the EU to give UK workers the right to be represented on the councils. It is an unavoidable and unfortunate truth that there is no way for the UK unilaterally to ensure that workers in this country retain that right without a deal. There is also no way to replicate the European works council system only in the UK, as their purpose is to enable cross-border engagement. That requires the same rules in all countries, which requires a withdrawal agreement.

The assertion that the UK cannot make those provisions is incorrect. In relation to financial services, for instance, the UK is unilaterally making provisions on payment services and hoping that EU member states will do the same. Is the Minister aware that what she is saying is incoherent and inconsistent with what is happening in other policy areas?

Is the Minister not concerned that we are, yet again, in Committee considering statutory instruments without impact assessments, which does not allow adequate scrutiny? I have raised the issue several times. Can she give an assurance that the next time she or her colleagues come before such a Committee, they will provide an impact assessment?

All the regulations have had de minimis statements applied. Obviously, they have been cleared through the better regulation framework, because if the impact exceeded the de minimis threshold, full impact assessments would have been made. All regulations or SIs that we bring to the House will be looked at by the Department in a deep way to assess the impact.

The hon. Lady’s first point was on other regulations that may be passing through the House at the moment and that are not directly related to the draft instruments. It is clear that we are retaining EU law. The changes we are considering are mostly technical, apart from the changes to the particular area I am referring to at the moment. Rightly, we want to see co-operation and agreement in the future where it is necessary and achievable. That is why the Government are determined to deliver a deal, so that we can have those reciprocal agreements with other member states.

The Minister is being most generous in giving way. She will be aware that the European Parliament and European Commission are currently negotiating regulations for workers in the gig economy and for working parents that are far better and stronger than anything found in the UK Government’s “Good Work Plan”. Is the Minister saying to the Committee that if the European Parliament and European Commission agree those regulations, the UK Government will match them?

I remind the hon. Gentleman that we are debating an SI that will be enacted if we are in a no-deal situation on 29 March. As I have already outlined, whether we decide in a future no-deal situation to align our laws with the EU’s is a different matter, but I repeat: we have the “Good Work Plan” and we are going further. We are still a member of the European Union, so we still take part in those conversations happening in Europe.

I would like some clarity regarding the Minister’s answer to the hon. Member for Glasgow South West. Is it the Government’s policy to match future EU advancements in worker protection laws?

I assure the hon. Gentleman that we have been very clear that we will not roll back workers’ rights. In fact, we have made an express commitment to go further. As I outlined, we already go further than Europe in many ways. We have been feeding into the development of EU thinking on some of these policies, as some of the work we have been doing in the UK is particularly good. We are determined to continue on our path. Our ambition is that the UK continues to be a great place to work, with those protections continuing to be afforded to the people employed in this country.

Our domestic regime for employee engagement and consultation will remain in place, and we will encourage businesses to continue to allow UK workers to be represented on a voluntary basis in European works councils. We are retaining as many of the existing rules as we can to enable that. All existing protections for workers and for their representatives on European works councils—even those there voluntarily—will be maintained. Approving the draft regulations is the only way to ensure that workers involved in European works councils are protected if there is no deal. They deliver on our commitments.

Another area I am aware that Members may be concerned about is the changes being made to the TUPE regulations. In a dynamic economy such as the UK’s, there will inevitably be takeovers and mergers and contracts changing hands, which is good for the prosperity of our country; the best companies outdo the worst. We recognise that that must be combined with strong protection for the workers in those companies, for whom a change of employer may be a stressful and difficult experience. TUPE regulations are central to protecting workers from suffering as a result of being transferred.

The draft regulations are an important part of EU-derived employment law, which we have committed to retain. In the UK, we have gone further than required under EU laws and we have extended these important protections to other groups of workers. Not only will we retain the elements from the EU, but we commit to retaining the gold-plating. Only by making the changes contained in the draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations can we make sure that workers remain entitled to these protections. The changes are necessary to ensure that the Government retain our current powers to extend the protection provided by TUPE to other groups of workers. These powers have been used to protect workers where there is a change of service provider that is not also a business transfer—a situation that would not be covered by EU rules. That crucial gap can include situations where a business outsources or contracts out a service. The changes are technical, but it is important that I set Members’ minds at ease.

The current powers are defined with reference to the EU directive, which applies to the UK as a member state. When the UK is no longer a member state, if there is no deal the reference will no longer make sense, so the reference must be changed so that it does not rely on EU law. Without that change, the Government could not use the power or use this tool for protecting workers in future.

I have highlighted these areas as the other changes in the SIs are purely technical, made to reflect the fact that the UK will no longer be a member of the EU. I assure the Committee that the amendments made through these SIs deliver on our workers’ rights commitments, thus providing clarity to employers, workers and businesses, and confidence that the Government are prepared for a no-deal scenario.

Can the Minister explain to the Committee why the Government felt it necessary to make some of these changes retrospective and bring them into being before we have left the European Union, even though these SIs are meant to be a series of so-called no-deal SIs?

In the event of a deal situation, the SIs that have been laid and passed can be revoked, referred, or brought to a following end-date, so there is a range of options on the table in a deal situation. We have been passing the no-deal SIs, particularly those before the Committee today, to make sure that we are ready if we leave the European Union on 29 March without a deal. It is imperative that we have regulations in place to ensure that we have a functioning statute book and are able to operate in a correct way.

I thank the Minister for giving way again. Some of the provisions in these statutory instruments actually came into force on 1 December 2018. Why is that?

I do not know the particular SIs that the hon. Lady is referring to, so I cannot comment on them. All I am commenting on are the ones that I have in front of me today.

Some provisions in the regulations that are scheduled to come into force came into force at the beginning of last December. Will the Minister explain why it was felt necessary to bring them into force well ahead of our leaving the European Union and then apply them retrospectively, which is not a good principle of law?

That may be, but the measures that she is referring to have not been highlighted. I am not aware of the ones that the hon. Lady is referring to. I am referring to the SI that is in front of me today.

If the Minister cannot give us the explanation I seek now, will she undertake to provide it in writing to all members of the Committee?

I will happily write to the Committee if the hon. Lady outlines to me the SIs that became active on 1 December 2018, so that I can give her and the rest of the Committee further clarification on that.

It would be unacceptable not to provide clarity to businesses and workers, and I encourage the Committee to approve the instruments. I commend them to the Committee.

It is a pleasure to serve under your chairmanship, Mr Evans. I am standing in for my hon. Friend the Member for North West Durham (Laura Pidcock), who has had a family bereavement. I am sure the Committee sends its condolences.

The Minister’s introduction presented the regulations as a necessary tidying-up exercise to remove unnecessary references to EU directives in important areas of workers’ rights, such as maternity leave, part-time work, fixed-term contracts and so on—I think she used the term “minor” to describe the effect of the legislation. On one level, that is understandable—we need our laws to be aligned with reality—but it seems at odds with the Prime Minister’s stated aim of protecting workers’ rights. From the removal of those powers, one can only conclude that the Government do not intend to match our EU counter- parts in terms of employment protection. The Committee will note that I asked the Minister about that and I do not think we had any confirmation that it is Government policy.

The regulations do not just remove our ability to keep pace with the EU but remove one area altogether. The Minister has already referred to it, so the Committee will not be surprised to hear that I am talking about European works councils, which are an important part of workplace democracy and a vital mechanism for giving a voice to the employees of multinational companies.

The Transnational Information and Consultation of Employees Regulations 1999 set out the rules governing European works councils. They say that where a company is based in two or more member states and has more than 1,000 employees, a European works council can be set up if one is requested. The regulations provide for the procedure to set up the council and a series of rights for employee representatives. Many of the information and consultation rights and protections are stronger than those under national legislation—for example, in relation to time off for workers’ representatives and the right to use experts and to undergo training. Those rights will be lost in a no-deal scenario.

Article 1 of the EU’s recast directive on European works councils anticipates the possibility of works council agreements that include non-EU countries and encourages them to proceed on a voluntary basis to enable workers’ representatives to participate. For example, the European works councils of companies operating in Switzerland often include Switzerland in their scope and may include Swiss representatives as members. However, the regulations do not appear to make provision for works councils to continue to include the UK in their scope on a voluntary basis, even though some European works councils have already amended their agreements to enable them to continue to work with UK representatives after Brexit.

In the regulations, the Government seek to retain certain aspects of the European works council scheme for councils set up before exit day, whenever that turns out to be. We welcome the fact that the enforcement framework, various employee representative rights and protections, and the confidential information protections are preserved for existing European works councils. There are also provisions to ensure that existing European works councils can continue to operate.

The concern, however, which we have already referred to, is that no new councils will be set up and that the right to request information on employee numbers, the provisions governing the setting up of a negotiating body, and the process and content of works councils and information and consultation procedure agreements will be lost. That clearly constitutes a loss of valuable workers’ rights in contravention of the Prime Minister’s promise to maintain existing workers’ rights at current levels.

The opportunity for workers to participate in discussions with their European colleagues on company-wide issues is valued by businesses, employees and their representatives. It can include opportunities for the workforce to be included in strategic multinational decisions about jobs, investment and training. Employees and unions are concerned that if UK representatives lose their place at the table, there will be a risk to UK jobs and investment.

In the event of a no deal, we need a commitment to continue to support and facilitate future voluntary UK worker participation in European works councils, as anticipated by article 1 of the recast directive, by keeping in place existing rights and protections for UK representatives on European works councils after Brexit. This will ensure that, in future, UK worker reps joining new or existing councils will continue to have their current rights and protections, including the right to paid time off to attend such meetings, as currently set out in regulations 25 to 27, and a right to training, as set out in regulation 19B. In our view, the draft regulations need to be amended to cover at least those basic work- place protections. Failure to do so would mean not honouring the Prime Minister’s clear commitments in this area.

On a more technical point, as alluded to by my hon. Friend the Member for Wallasey, the draft regulations are supposed to come into force on exit day, with the exception of certain provisions. The Minister needs to explain the need for that distinction.

I also have concerns about the lack of a Government statement on their timetable for revoking the regulations, in full or in part, should a withdrawal agreement with the EU be concluded. The draft regulations do not provide for the method by which they would be revoked. The unique circumstances that we currently face could involve considerable numbers of statutory instruments being repealed or revoked in a short space of time. The nature of the revocation is an important matter that we need clarity on from the Minister. I hope she agrees that, if a withdrawal agreement is secured, the draft regulations will not be needed subsequently, including in a transition period or in any backstop, if that is where we end up.

The second draft instrument proposes to alter the Secretary of State’s power under section 38 of the Employment Relations Act 1999 to provide TUPE protection to workers not ordinarily covered by those regulations, which typically include what are colourfully known in the directive as administrative reorganisations of public administrative authorities and the service provision changes that the Minister referred to.

I understand the need to remove the reference to the EU, but I do not understand why, as part of that process, the Government intend to water down TUPE protections, which it seems will be the inevitable consequence of using the phrase “TUPE-like” in the draft regulations. That is the nub of it. Why is “like” in there at all? Surely it is superfluous. The protections will be “the same or similar”. Why can they not just be the same? That is what the Opposition want, and I think it is what the Prime Minister intended.

This change will cover a potentially huge number of employees, as it will apply to contracting out of public sector services, market testing, private finance initiatives, any other outsourcing and contracting exercises, second and subsequent generation contracting where the contract was first awarded from the public sector, and reorganisations and staff transfers from one part of the public sector to another. We cannot simply nod through the draft regulation because it could affect thousands of employees.

The risk is that “TUPE-like” could mean that TUPE protections on changes to terms and conditions may no longer apply. Will the Minister confirm that the power could be used to prevent employees’ terms and conditions from being preserved after a transfer? Is it not the case that the draft regulations will mean that current rules regarding protection against a dismissal connected to a transfer could also be disapplied? Is it not also correct that existing laws regarding information and consultation on a transfer could be ignored as a result of the draft regulations? On the latter point, the Trades Union Congress points out that the draft regulations do not expressly refer to employee representatives, be they trade unions or elected representatives. Will the Minister explain why that has been omitted?

I would also be grateful if the Minister clarified what would happen in a no-deal Brexit where employees of a UK company were involved in a TUPE transfer post 29 March to a new employer based somewhere within the EU. Would any employee wishing to enforce their rights against their new employer have to do so subject to the European Court of Justice’s jurisdiction? Normally, both employers in a TUPE litigation would be made parties to the case. Does that mean that UK companies could still be subject to ECJ jurisdiction post Brexit?

The other aspect of the second draft instrument is the proposed amendment to section 13 of the Working Families Act 2006, which will have the effect of removing the obligation to keep pace with EU law on annual leave entitlements. The enshrining in UK law of the working time directive was one of the finest achievements of the last Labour Government, bringing for the first time a legal entitlement to rest breaks and paid annual leave. I am not surprised that the Government are taking the opportunity to weaken the standing of the working time regulations, given that a number of current and former members of Government, including Cabinet members, have spoken at length about the supposed burdens of the regulations. The Opposition do not consider paid annual leave or daily and weekly rest breaks to be a burden. They are essential health and safety measures, as well as important parts of workplace protection.

It is clear from this instrument that the Government do not wish UK workers in future to enjoy parity with their European counterparts. This can be seen as the firing of the starting gun on the race to the bottom. Indeed, as the political declaration makes clear, employment standards are to be considered subordinate to open and fair competition. That is where we are heading.

Does my hon. Friend agree that this is not just about the protection of employees but about those they serve? I refer to the ten-minute rule Bill introduced by our hon. Friend the Member for Warwick and Leamington (Matt Western) in the Chamber today, which was prompted by the deaths of people in Coventry as a result of a bus driver having worked inordinately long hours that week and the two weeks beforehand. That is an example of the importance of adequate employment legislation, not only for workers but for those they serve and their customers.

My hon. Friend is absolutely right. That is why the working time directive was initially presented as health and safety legislation. It is not just about the worker’s health and providing adequate rest breaks, but about protecting those enjoying the benefits of their labour.

The Prime Minister may talk a good game but the evidence is that the words do not match the reality. Hers is the party that introduced employment tribunal fees, doubled the qualifying period for unfair dismissal and commissioned the atrocious Beecroft report, which proposed removing workplace protections altogether. I hope I will be forgiven for taking the Prime Minister’s comments in the Chamber yesterday about matching EU developments in employment rights with a pinch of salt, given what is before us today. Her track record does not inspire confidence, and these regulations do not do what she claims she wants to do. In fact, they do the opposite.

I say to the Minister that if the Government are genuinely trying to find common ground with Members across the House, these regulations should be withdrawn, because they do not do what the Prime Minister claims she wants to see happen. They represent the erosion of workplace protection and they must be opposed.

It is a pleasure to see you in the Chair, Mr Evans. We need to start from the moment the Government tried to sneak these measures through using the negative procedure when they tabled the regulations on 31 October 2018. I am astonished that that great bastion of democracy, the House of Lords, was the place to correct the Government’s disregard. If it were not for the concerns put by the Trades Union Congress, that is exactly what the Government would have done.

It is true that the House of Lords spotted that the regulations would better fit the affirmative procedure but, to cheer up the hon. Gentleman, so did the European Statutory Instruments Committee of the House of Commons, of which I am a member, when we had a look at the regulations. We also suggested to the Government that the regulations are not minor and should certainly be subject to fuller debate.

I am grateful for that clarification. I was previously a member of that Committee—I thought the Whip was punishing me for something—and that shows the Committee system plays an important role. The Minister needs to answer why these statutory instruments have different dates for different parts. For instance, 1 December has been mentioned; some mention exit day and some mention other dates. The Minister should clarify that. If there is no clarity on that matter, I do not see how the Committee can agree to these statutory instruments.

Although the Government have said that they want to keep workers’ rights, the clear concern is that what is happening in reality is a loss of guaranteed upgrades. A classic example of that, which I mentioned in my question to the Minister, is the regulations currently being negotiated between the European Parliament and the European Commission in respect of workers in the gig economy and working parents.

It is clear that, if there is no deal, UK workers will no longer be entitled to request the establishment of a European works council. That is important in many areas of the country. In the bus sector, for example, companies such as Arriva have workers across the European Union and in the UK. Arriva ran services in the west of Scotland before it pulled out, and its workers had to be offered jobs elsewhere in the European Union to continue their work.

The fact that UK workers will no longer have the opportunity to request the establishment of a European works council, in order to participate in discussions about company-wide issues with European colleagues, is very serious. Protections are clearly being weakened, because European law and the courts provide a protective backstop—I believe that phrase is in vogue—against EU workers’ rights law being weakened by future UK Governments.

That brings us to the issue of trust. The Prime Minister’s statement yesterday, and her answer to my question about what happens here if the European Union strengthens workers’ rights, mirrors what she said in her letter to the Leader of the Opposition: that there would be a vote in Parliament, and that the Government would not advocate matching those terms.

I asked that question of the Minister today, and I feel she did not guarantee that the Government would match those terms. Somehow it would be put to a vote, and workers across the UK would have to trust the Conservative party to enhance their workers’ rights— I do not think so.

I am sure the hon. Member for Wallasey will agree that those of us who were involved with the anti-trade union Act saw the real face of conservatism when it comes to workers’ rights and protections, and we remember the statements made in relation to workers’ rights by the great advocates of the leave campaign. The Secretary of State for International Trade said:

“It is too difficult to hire and fire”

people in the United Kingdom.

The reality is that these statutory instruments are badly drafted and offer no scope to keep United Kingdom law in line with EU law. As such, I will be voting against them.

It is a joy to see you in the Chair, Mr Evans. I begin by thanking the Minister for agreeing with the recommendation of both the House of Lords and the European Statutory Instruments Committee, which considered this collection of eight different measures and asked the Government to think again about using the negative procedure. If the Government had their way, there would have been no debate whatsoever about any of these important matters.

The Minister told the Committee that these are just technical amendments, that there is nothing to see here and that we should all be happy not to be bothered by a series of tiny law changes. However, those of us who have been in the House a long time and know all about the general approach of the Conservative party to workers’ rights legislation want to check it out anyway. A little later, I will outline some things that it would be helpful for the Minister to clarify in her response.

Let us look at what these two sets of statutory instruments do. The first is for Northern Ireland, which of course does not have a functioning Executive at the moment, and therefore legislation is effectively being made for it without its direct say-so. The second set applies to the rest of the country: England, Wales and Scotland.

The European Statutory Instruments Committee noted that the regulations amend four employment Acts to remove the power of the Secretary of State to make secondary legislation implementing EU employment directives. That is good, one might think, but that is four employment Acts changed by this collection of legislation. The Committee also felt there is a policy vacuum in what will replace the powers being taken away.

Section 79(3) of the Employment Rights Act 1996 is about the parental leave framework, and it will be repealed. Section 19(4) of the Employment Relations Act 1999 is about part-time work, and that will be repealed. Section 45(4) of the Employment Act 2002 is about conditions of employment, framework agreements on fixed-term work and the application of terms and conditions of employment and matters that arise because of the UK’s obligations under that particular EU directive. That will be repealed. Section 42(5) of the Employment Relations Act 2004, which has provisions about information and consultation, will be repealed.

The Government could have done other things. They could have tweaked rather than repealed all those things. Why have they decided to repeal? Why have they decided to tweak in other ways, such as by saying “TUPE-like”, rather than just cutting and pasting existing requirements and protections into UK law? I am alarmed that the Government felt they could bring forward this legislation without the Minister coming here to give us a lot more information about the Government’s approach.

It is about not only putting the same rights into UK law, but saying a bit about the loss of updating rights for the future. What, for example, is the Government’s intention, as the hon. Member for Glasgow South West has noted, on shadowing future rights that the EU may decide to grant its citizens, particularly in the gig economy? We know from experience that this Government have done little in the nearly nine years they have been in existence to aid and assist those who work in the gig economy. That has been left to unions such as the GMB, which has pursued Hermes through the courts to get those who work there the employment rights they should have been granted at the outset.

We know that other unions are pursuing employers such as Pimlico Plumbers and various other non-gig employers that are attempting to say that they do not have anyone working directly for them. Somehow all those people are self-employed and therefore have to pay for their own pensions and holiday pay. They do not get any sick pay or any other access to the basic protections we would expect every worker in the UK to get as a matter of common decency. Again, the Government have stood by and done absolutely nothing to protect those rights. They have made clucking noises about it and released the odd press release about how they are very concerned, but they have not done anything to make those rights accessible and available.

In fact, the coalition Government introduced employment tribunal fees, which effectively made it impossible for those with issues to enforce the rights they thought they had under UK law. They effectively dismantled what was left of the employment tribunal system by starving it of resources, so waiting lists were massively long and the only people who could really afford to get their statutory rights enforced at all were trade unions members who could afford to wait for a very long time and those who could risk their own money simply to try to get their basic rights enforced in the UK.

Of course, the Government also introduced the Beecroft report, which basically said that all maternity rights, and most employment rights, are a burden on business and ought to be abolished, and that everyone should fend for themselves.

It is very hard, looking at these transitions of EU regulations into the UK statute book, to take the reassurance of anyone from a Government with such a record that we can rely on the blandishments they might issue on the Floor of the House. We want to see proper law, proper debates and proper employment rights. We also wish to see an enhanced capacity for those organisations to allow workers to access their rights, thereby making those rights a reality.

So we come again to the Government’s record in that respect. The Trade Union Act 2016 made it virtually impossible for trade unions to operate without being caused enormous organisational problems and expense, which is a particularly vindictive approach to organisations that were created to ensure that workers can access their rights.

Many Conservative Members have said that, somehow, there will be freedom when we leave the European Union, but I could be forgiven for thinking that that will inaugurate a race to the bottom on rights. There will be competition in how exploitative we can be to those who work in what is already—let me put it this way—a very flexible economy, in which many people now struggle even to achieve basic pay, conditions, pension entitlement, sick pay, holiday pay and the rest of it.

We will look at the colour of the legislation, but I note that the Minister initially tried to get these statutory instruments through without even having a debate. Labour Members continue to look very closely, with a great deal of scepticism, at what is actually happening here, and whether there will be another attempt further to ratchet down the rights that people enjoy in our labour market.

I gently say that those of us on the Government Benches have listened to these allegations that we all have it in for workers’ rights, but nothing could be further from the truth. We are actually very proud of our track record on workers’ rights, and we stand by it. Although we may be silently listening to this long line of allegations, it does not mean that those allegations are true. We can stand proudly on our track record. I thought I would put that on the record, because otherwise a person listening in from outside this place might go away with the wrong impression. At the end of the day, actions speak louder than words.

I am glad to have provoked the hon. Gentleman to get to his feet and make that fairly fantastical claim, when 60% of people in poverty are actually in work, and when we have seen a huge increase in the number of people on zero-hours contracts, or on contracts so flexible that they cannot put food on the table at the end of the week.

Does the hon. Lady agree that insecure work has exploded in the past nine years and that the reason we are so suspicious is that those who advocate leaving the European Union kept using the deregulation of workers’ rights as a vehicle to enhance their cause?

Absolutely. We all remember the horror with which the Thatcherites perceived the appearance of Monsieur Delors at the Trades Union Congress, when he actually said that there was a social justice aspect to the European Union and that, of course, if there is a free market in the EU, there also has to be cross-border workers’ rights. Anyone who looks at the record will know exactly what to expect from the deregulators who form the core of the Brextremist Members of the Government party. They are positively salivating at the chance to cut further people’s entitlements in the labour market. They have always hated the idea that there was a floor below which they could not take workers’ rights, even when they were in government.

The hon. Lady talks about social rights, yet she tends to turn a blind eye to the fact that within the EU—certainly on the continent—unemployment is nearly twice the level that it is here, and youth employment in certain countries runs up to 50% and above, which is an absolute disgrace. That is not social justice. There has to be an element of balance in the hon. Lady’s remarks if she is comparing our track record with that of the EU on the continent.

The hon. Gentleman makes an interesting comment. He looks at countries such as Spain, which has had a particularly difficult time with youth employment, and southern countries, but does not mention Germany or Sweden or any of the other places—[Interruption.] Let me finish the sentence. He does not remember any of the other places where there is a much less exploitative approach to skills, training, work and opportunities, and where they manage to create a much more productive economy, with a much happier workforce, which does not feel that it is being exploited.

I am afraid the hon. Lady was being selective again. I quoted the EU average unemployment rate, which includes Germany and France and the northern countries. Even taking them into account, the EU unemployment rate is twice the level of that in this country. When the hon. Lady talks of productivity, she has got to be careful. If we are employing a greater share of the workforce, productivity will go down. Halving the unemployment rate is often done among low-skilled workers.

Order. Before the hon. Lady responds, I would just say that the discussion is going a bit wide of the mark. We could turn this into a general debate, but that is not what we are here for. If we could focus on the statutory instruments, that would be really useful.

Thank you, Mr Evans, and I am more than happy to abide by the obvious correctness of your ruling. I will merely say in passing that the issue is about taking away workers’ employment rights and making them harder to access and easier to exploit, which suggests that the hon. Member for Basildon and Billericay takes a very different view from Labour Members of what represents a good productive workforce. A proper look at the evidence indicates as much.

Does my hon. Friend agree that the hon. Member for Basildon and Billericay and a number of his colleagues seem to act in an evidence-free zone, even when the facts speak for themselves regarding the Government’s legislative changes to employment rights and reducing people’s rights? They opposed the national minimum wage when Labour introduced it and a whole series of improved labour standards regulations. Just because he says it, albeit in a well-mannered way, does not make it true. He should face up to the facts, which are that his Government have undermined labour standards. This is another attempt at a race to the bottom and labour market exploitation.

Order. I know the hon. Member for Wallasey is not going to be tempted too far down the road of responding to that intervention.

Mr Evans, you know me very well and you know that I am never tempted at all to get away from being in order, which I take extremely seriously.

I have a couple of other points. We have to remember that for slightly more than 40 years the UK, as a member of the European Union, has seen progress in and directives on employment law, as well as protections for a range of rights, including health and safety, equality, equal treatment and anti-discrimination. Those protections have been considered a floor below which no Government of this country have been able to go, despite the wishes of certain current Government Members.

The Minister asks us to trust her—and trust the Prime Minister’s warm words but complete lack of action—that the Government do not wish to go below that floor, yet many of the Brextremists in the Conservative party have openly indicated otherwise. The Beecroft report would have crashed through the floor into the basement and further down. We know about the treatment of trade unions and organisations whose raison d’être is to protect workers. The lack of legislation or progress on any new forms of employment is simply another indication that, at the very least, the Government do not prioritise this area, but I suspect that the situation is worse than that.

If we are to agree to instruments such as the draft regulations, we will need much better suggestions from the Minister than, “Trust me.” We want much more evidence that there will be no loss to updating rights and that, as the TUC suggests, further rights agreed by the European Union will be more than matched in this country. We also need to know much more—I hope the Minister will cover this in her reply—about why it was thought acceptable for some pieces of legislation to be debated retrospectively after coming into being.

I hope that the Minister’s reply will give us some satisfaction that we can trust in, so that we can move forward. However, I have to say that I think it quite right for the Opposition to vote against the draft regulations until we see much more evidence that the Government will deliver what they say they want to deliver, and that they will act. To date, they have simply talked.

It is a pleasure to serve under your chairmanship, Mr Evans. I want to pick up where my hon. Friend the Member for Wallasey finished: on the issue of trust. I know the Minister to be a reasonable woman, and she is in her job at the moment, as the Prime Minister is in hers. However, the Government are basically asking us to take the draft regulations on trust. What will happen in the future, when we lose the protections and rights that we enjoy thanks to our European Union membership? It may happen under a different Minister, but it will almost certainly happen under a different Prime Minister. As we all know, the Prime Minister says that she will not hang around for very long, and she will certainly not take the Conservative party into the next general election.

We also know that, as my hon. Friend said, there are many Conservative Members itching to get their hands on employment protections and regulations. They want a bonfire and a race to the bottom, and they fantasise about a Singapore-style Britain somewhere in the middle of the Atlantic. It is those people who are likely to steal the Prime Minister’s crown when there is finally a Conservative succession, because they are in the majority among her party members.

I just do not recognise that description of members of my party. I am sorry, but it is wrong to say that we fantasise about doing away with all that stuff.

I was not referring to the hon. Gentleman, of course, but I invite him to study the writings and comments of members of the European Research Group and their favourite economist, Patrick Minford, about their vision for our future. If the hon. Gentleman is not aware of those views, it is very worrying, because these are the people who are holding our country to ransom and taking over the Conservative party. There are Conservative MPs on my own patch whose local parties are being infiltrated by Arron Banks supporters with the specific aim of deselecting decent Conservative Members like the hon. Gentleman and replacing them with hard-right fanatics.

The Minister is asking us to take everything on trust in a world in which it is simply not possible to do so in a responsible way. She was very selective in her list of areas where Britain does have a good record, and where her own Government have a fairly good record on parental leave and so forth.

As others have mentioned, the Government do not have a good record when it comes to organised labour; they have a blind spot regarding its crucial importance in protecting workers’ rights and people at work. We have heard countless examples, including the scandal of tribunal fees, the Trade Union Act and so forth. The Minister is asking us not only to take on trust that the people in charge now will still be in charge in the months ahead; she is also giving a rather imbalanced account of the Conservative party’s record.

I occasionally read that there are members of my own party who would like to facilitate or support the Prime Minister’s EU withdrawal deal, in return for what I consider to be completely meaningless assurances about the future of workers’ rights. I simply invite them, before they take that leap of faith, to look at the way in which the Government are ramming through these SIs without proper scrutiny.

We are elected as Labour Members to support workers’ rights. I would not want any of my colleagues inadvertently to support a very bad deal, on the basis of assurances given by a Prime Minister who is not going to be around, and when the real power brokers in her party have absolutely no intention of respecting those guarantees.

It is a pleasure to see you chairing our proceedings this afternoon, Mr Evans. The final comments from my right hon. Friend the Member for Exeter were the perfect introduction to my remarks, given that I am one of those prepared to give the Prime Minister the benefit of the doubt, although not a blank cheque. Like many colleagues—every Opposition Member, I suspect—I signed amendments to the 15 January resolution, requesting greater clarity and assurances on workers’ rights as part of the Government’s deal, which they are trying to conclude and persuade Parliament to accept.

I heard what the Minister said about workers’ rights. We have heard that from the Prime Minister before. I do accept that in this country we enjoy rights above EU norms and that we are not entirely dependent on the EU for bringing forward workers’ rights. However, as every Opposition Member who spoke has clearly articulated, we need to see real evidence that the Government mean what they say on workers’ rights. Until we see that, there will continue to be a great degree of cynicism and scepticism that the Government actually mean it.

The discussions now taking place with trade unions are very welcome, but they are two years too late. Engagement with Labour Front Benchers is two years too late. Having said that, we are running out of time and the Government have the opportunity to demonstrate that they mean what they say.

I am grateful to my hon. Friend and neighbouring MP for giving way. Does he agree that many of those enhanced rights were enacted by the last Labour Government, of which he was a part? Some changes, such as articles 13 and 14, enhancing rights against religious discrimination in the workplace, were incorporated by that Labour Government from EU legislation. This Government have shown much less willingness to enhance rights, and the risks remain that they will continue to run down our rights, as has been evidenced in this debate.

My hon. Friend demonstrates the degree of concern that the Opposition have about workers’ rights. I was not going to mention it but I am proud to say that, when I was employment Minister, I had the privilege of signing into legislation a number of rights that were not dependent on the EU. My right hon. Friend the Member for Exeter and my hon. Friend the Member for Wallasey were also in positions that enabled them to take legislation through the House that improved standards in this country.

As my right hon. Friend the Member for Exeter said, the Minister is highly regarded in this place, so I say this with no disrespect. Our vote against these SIs demonstrates that the Government need to do more before they get support from as many Labour MPs as they need to get their deal through. Some of us on the Opposition Benches want that commitment and those assurances, so that we can vote without the fears outlined by my right hon. Friend.

I thank all Members who have contributed to the debate. As the Minister responsible, I am well aware how passionate Members are about the subject, and not just those on the Opposition Benches. Despite what has been said, there is strong support for these regulations on the Government Benches.

I am extremely sad that the Opposition will be voting against this SI. I remind the Committee that it deals with a no-deal scenario and would come into force only if we leave the European Union on 29 March without a deal. It ensures that our statute book is in working order. By passing it today, we are effectively guaranteeing workers’ rights. Voting against it puts workers’ rights in jeopardy in the event of a no-deal scenario.

I will address some of the points that have been made. We are lucky that a number of experienced and well-respected Members have taken part in the debate. As a Minister and a relatively new Member, I welcome the experience and comments of Members who have been around far longer than I have. I was elected as a Conservative Member in 2015, but some of the comments I heard this afternoon, about my party’s position on workers and its aspirations for their future in our economy, were contrary to what my party stands for.

The Prime Minister invited Matthew Taylor to undertake his review—it was our Prime Minister who brought that forward—and we will be implementing the majority of its recommendations, as published in our “Good Work Plan”. That plan will be the biggest reform of workers’ rights in a generation—that is the reality—and a Conservative Government will bring it forward. I respect the position of hon. Members who say that they do not feel that they have had clear assurances from the Prime Minister that in a deal situation we will not row back on workers’ rights, but the fact of the matter is that the Prime Minister has been clear. Not only have we announced the “Good Work Plan”, but we have already laid three SIs that further protect workers’ rights.

If the Minister wants to enhance and strengthen workers’ rights, the Government are welcome to support my Workers (Definition and Rights) Bill, which I can assure her is a beautifully written piece of legislation that deals with some of the issues. Does she not appreciate the criticism that the EU is currently negotiating regulations that give better and stronger workers’ rights than those set out in the “Good Work Plan”? If the EU pushes those through, can she give us an assurance that the UK Government will adopt the regulations?

Let me be clear: the reality is that we are committed to going further on workers’ rights, as has been shown through our publication of the “Good Work Plan” and the laying of SIs. We are going further than any Conservative Government have, and I am very proud of that. I am extremely proud to be part of a Government who have put workers’ rights at the top of their agenda, particularly in my Department.

I am proud that this Government look at and deal with the issues that arise, and then look for ways of resolving them, which is exactly what we are doing with our “Good Work Plan” and the SIs that have already been laid. I understand the concerns of Opposition Members, but I am pleased to be extremely clear in saying that we are committed to maintaining workers’ rights and to going as far as we can. We talked about European Union committees and the work currently going on. We are still involved in those negotiations, are feeding into those negotiations and are helping the EU to formulate recommendations. The legislation that we are bringing forward will ensure that they are protected and will continue to be protected.

I would like to finish my points and then get on to answering some of the questions I have been asked.

I was pleased that my hon. Friend the Member for Basildon and Billericay made his contribution. He was absolutely right, as was my hon. Friend the Member for Beckenham. I thank them for making their points. The accusations that the Opposition have levelled at our party and our Government this afternoon characterise a party that I did not join and I am not part of; they illustrate something that I do not think is the reality. I am the Minister responsible, and it is not what I think, so there we go. [Interruption.]

Order. I think that the Minister is being heckled by her own side. Can we please have a bit of calm, so that she can focus on her response?

Thank you, Mr Evan; I am so very lucky to have you in the Chair this afternoon.

I thank hon. Members for their contributions. I reiterate that these regulations are for a no-deal situation. The Government are still determined to get a withdrawal deal. I hope that the Opposition will be willing and open-minded, and will want to work with the Prime Minister to ensure that happens, to get to a position where they will support a deal so that the regulations do not have to come into force in a no-deal situation.

I will try to answer the questions I have been asked, but I am more than happy to write to hon. Members if I do not respond to all of them. Hon. Members suggested that we are not retaining workers’ rights in these regulations. The regulations are mainly technical; they introduce technical changes to ensure that current rights are retained and that we operate from a clear statute book. As hon. Members know, there was no provision in the European Union (Withdrawal) Act 2018 for us to make changes in policy. There was an element of the Act that enabled us to bring forward legislation to retain EU law and make modifications so that we would have a clear statute book.

The hon. Members for Wallasey and for Ellesmere Port and Neston raised the question of enacting such legislation. It is true that those elements were intended to correct redundant EU references, which is why they would come into force earlier. They are not a consequence of the UK leaving the EU; they would change out-of-date references in the legislation. I hope that my explanation has answered the hon. Lady’s question on that—the instrument does not actually have any relation to the UK leaving the EU.

I am grateful to the Minister for explaining why there are different dates, but can she explain why some of them are retrospective?

As I have outlined, it is because of out-of-date references to EU regulations in the legislation, which will be changed. On European works councils, it is true that the European Union could allow us to have a reciprocal agreement even in a no-deal situation. That could happen, but obviously we cannot guarantee that the EU will allow it. As it stands, the current laws and protections afforded to representatives on those councils and to employees will be retained. It will affect new works councils, but that might be resolved in a deal situation. In a no-deal situation, it does not stop the fact that there might be cross-border co-operation and reciprocal agreement. I can give hon. Members some comfort that, as I have outlined, anything that would allow us to continue in the same way and ensure that workers’ rights are protected would be a good thing.

Can I get this absolutely right? We are talking about taking employment rights from the European Union and putting them into UK law. Effectively, we are changing as little as possible, so that things do not change for workers. That is what the Conservative party would like to happen.

I assure my hon. Friend that he is correct; that is exactly what we are doing. Failure to pass this no-deal SI would put workers’ rights in jeopardy. This SI would allow us to protect those rights.

I thank the Minister for that explanation, but paragraph 7.6 of the explanatory memorandum states something different, namely that

“the SI amends the TICE Regulations 1999 so that no new requests to set up a European Works Council or information and consultation procedure can be made.”

Therefore, the statutory instrument actually weakens workers’ rights. Deal or no deal, is it the Government’s position that UK workers will have access to a European works council where it applies?

As I have already said, because we will no longer be a member of the European Union, it will be up to the European Union to decide whether it gives us reciprocal abilities to continue down that path. There are existing rules governing consultation for businesses and employers. There is already a UK system. I like to think that what I said about opportunities for us to have reciprocal rights was clear, but the SIs relate to a no-deal situation, and I was very clear in my opening speech that in such a situation some things would be a reality and would not necessarily be in our control.

It was suggested that we should not use the wording “TUPE-like”. We decided to use that wording to maintain the current scope of the powers.

The SIs make no change to the working time directive. It will not be scrapped or lost. That is not what the SIs are intended to do. As I tried to make clear, in a no-deal situation, these SIs would not all of a sudden roll back or strip workers’ rights. That is not what they are about; they are about protecting the situation as it stands. That is why I feel very strongly about them. There will not be a vacuum in workers’ rights in a no-deal situation, because the powers effected by the SIs will protect the status quo. In a no-deal situation, those rights will not suddenly disappear. There will not be a race to the bottom. The Government have no intention of that.

We need a statute book that is ready to protect workers and give businesses, workers and employers all the clarity they need if we exit the European Union without a deal on 29 March. I hope the Committee recognises that these important pieces of legislation provide such clarity, and that failing to do so could jeopardise the rights of workers. I do not believe the UK workforce would be happy if it was unclear about what would happen in a no-deal situation.

I absolutely accept the comments made today about the Government’s commitment to securing workers’ rights, and wanting to go further. I am sorry that the Prime Minister’s word has not been taken completely at face value, because I fundamentally believe that what she has said is the case.

As I have already outlined, we have submitted the three SIs dealing with, among other things, the repeal of the Swedish derogation, and fairer holiday pay. Obviously, there is legislation to come. In a deal situation, or even a no-deal situation, we are intent on going further and making sure that workers in this country are protected. That also means working with and reacting to businesses and the marketplace. When things change, a responsible Government will look at the challenges and find ways to resolve some of the issues that may affect the workforce. I firmly believe that the Government are trying with absolute focus to do that.

The Government are complying with our duty to ensure that the UK is prepared for every outcome, whatever happens in the EU negotiations, and not to roll back workers’ rights. I therefore hope the Committee will approve the regulations.

May I explain the process to the Committee? I shall put the first question and if the Committee wants a Division, that will happen. Each statutory instrument will then be taken individually. It will be up to the Committee whether to divide, but they will be taken separately. For the three statutory instruments that have not yet been moved, the Clerk will read the title before I request the Minister to move them formally.

Question put.


That the Committee has considered the draft Employment Rights (Amendment) (EU Exit) Regulations 2019.

Draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Motion made, and Question put,

That the Committee has considered the draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019.—(Kelly Tolhurst.)

Draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018

Motion made, and Question put,

That the Committee has considered the draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018.—(Kelly Tolhurst.)

Draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2018

Motion made, and Question put,

That the Committee has considered the draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2018.—(Kelly Tolhurst.)

Committee rose.