European Union (Withdrawal) Bill

Baroness Drake Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness Drake (Lab)]

My Lords, this Bill preserves existing EU law as it applies in the UK, converting it into domestic law as retained EU law to provide legal continuity and certainty on exit day. It gives Ministers extraordinary correcting powers to amend such retained law where they consider there is a deficiency. We are therefore in, as the Constitution Committee observes, “uncharted territory”, so it is unsurprising that many organisations have expressed concerns that the Bill gives rise to ambiguity about the status of the different categories of retained EU law and that the Government are given abnormally wide powers to amend legislation.

In Committee, this House will examine whether those powers are greater than are needed for the task in hand, if and how they should be restricted, and the level of transparency and scrutiny that precedes the deployment of those powers. As my noble friend Lady Taylor of Bolton referenced, the Constitution Committee expresses the view that the overly broad powers that the Bill grants to Ministers to do whatever they think appropriate to correct deficiencies in retained EU law are “constitutionally unacceptable”. It goes on to suggest controls, such as “good reasons” statements, to be put in place on the proposed use of those powers.

Many important areas of law will be impacted by the Bill, and I want to reference workplace and equality rights—clearly a people’s issue. Clause 2 preserves EU-derived domestic legislation when the UK exits. That is important, as it addresses many EU-derived equality, employment and health and safety standards and rights, including where existing UK law has exceeded minimum EU standards—for example, on important maternity leave rights. Examples of other rights include the Working Time Regulations, the Transfer of Undertakings (Protection of Employment) Regulations, agency workers’ rights and equal treatment for part-time workers and fixed-term employees.

Clause 4, importantly, preserves the right to equal pay for equal-value work, which flows from Article 157 of the Treaty on the Functioning of the European Union. The impact that Article 157 and the accompanying EU Court of Justice case law have had on women’s pay and pension rights in the UK cannot be overstated. However, there are deep concerns that the “correcting powers” which the Bill affords to Ministers could be used to weaken such rights, including those contained in existing Acts of Parliament, such as the Equality Act. A range of workplace and equality rights in retained EU law could be vulnerable to change by subordinate legislation contained in other Acts of Parliament when that retained law does not have the enhanced protection that flows from EU membership.

Last December, the Prime Minister failed to rule out scrapping the working time directive, the agency workers directive and the pregnant workers directive. Maternity rights and part-time workers’ rights appear at risk. As the Fawcett Society powerfully observed, it would be regrettable if Brexit and this Bill resulted in the loss of the opportunity to be the best place in the world to be a woman.

There needs to be a robust process of scrutiny to ensure that executive powers in the Bill cannot be used to make changes in significant areas of policy and enhanced protections for key rights. There is also the question of Court of Justice of the European Union case law post exit, which the noble Lord, Lord Kakkar, spoke about at some length. Domestic courts will not be bound by such case law, but there are strong arguments to be put in Committee that courts should have regard to such judgments where they are relevant to the proper interpretation of law which originated from the EU. Without such regard, people in the UK may see their rights weakened.

It is also unclear how provisions in the Bill may be affected by future negotiations. During any transition period, the UK may not be able to weaken retained EU law. Future agreements on UK and EU relations may require the UK to comply with EU law, including on workplace rights. We need to understand those implications when we look at this Bill.

Finally, I return to a matter that I have raised previously. It may not seem significant to many in the great scheme of economic affairs, but it is hugely important to the people affected, and that is the need to replicate the protections from violence against women and girls post exit day. Women and girls at risk of violence may lose significant legal protections. European protection orders, which grant victims equivalent protection against perpetrators across the EU, will no longer be available to UK citizens. The ability to share data on perpetrators and a host of other measures aimed at tackling human trafficking, female genital mutilation and the sexual exploitation of women are also at risk. We need to understand how these rights and protections will be preserved post exit day.