Courts and Tribunals (Online Procedure) Bill [HL]

Baroness Drake Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I shall say just a word or two in support of these amendments. Amendment 2, by adding the two words “providing for”, and Amendment 3, by removing the one word “technical”, would rather improve the clause. Amendment 5 improves government Amendment 4, which itself was an improvement. If I may, I will paraphrase how I understand Amendment 5 would work: if you are not digitally educated and you would prefer to use paper you may do so, and if you do your papers will be incorporated into the electronic system. The amendment would provide that you are entitled to continue to use your own paper and your own paper system because the electronic system would be perfectly well able to provide you with all the paper you need. There should be no difficulty about it at all.

Amendment 5 is consistent with Amendment 18 to Clause 7, which has the interest of those who require technical support to be protected. It also, for the reasons given by the noble Lord, Lord Pannick, effectively makes Amendment 7 in the name of the noble Lord, Lord Beecham, to Clause 3 redundant because the paper user would then not be at any disadvantage. For the reasons he has given, the idea of having two systems running side by side would, among other things, be a recipe for those who do not want justice to be done and who want to confuse and to avoid getting the system to court for a hearing.

[Baroness Drake (Lab)]

My Lords, I too will speak to Amendments 3, 5 and 9A. In their Amendment 1, the Government accept that to secure accessible and fair court online practice and procedures, regard must be had for the needs of those who require support to initiate, conduct, progress or participate in electronic proceedings. Their Amendment 4 would allow a person to initiate proceedings by non-electronic means—that is, in paper form—but they are silent on allowing people the same facility at other stages, even though they recognise that regard must be had to those who will need support throughout all stages of the proceedings. That non sequitur is addressed by Amendment 5, which allows for further documents in all stages of proceedings to be submitted in paper form.

In Committee, noble Lords debated at great length the potential impact on access to justice for court users with limited digital means, digital literacy, or capacity to engage digitally. The Minister has accepted that some people find it difficult to engage with such digital procedure, but the Bill contains no general duty on the provision of such support, which Amendment 9A would provide. It is therefore a welcome amendment.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

Again, I am not sure about that. I do not accept what I understand to be the Government’s argument against the amendments.

Clause 8 includes a rule-requiring power, and Clause 9 allows for the amendment or revocation of provisions made under an Act, which include the rules. Overall, it seems that Clauses 8 and 9 give the Government a rule-making or rule-requiring power. As I understand it, the Government’s argument is that Amendment 6 to Clause 2 and Amendment 8 to Clause 3 remove the need for a concurrence requirement in respect of Clauses 8 and 9; they also argue that, through those amendments, the concurrence requirement will govern the designation of proceedings of a specified kind and, similarly, will govern whether the Online Procedure Rules or conventional rules will govern proceedings which are of a specified kind. They go on to argue that, therefore, Clauses 8 and 9 will operate within that framework, and the concurrence requirement is therefore unnecessary in relation to the powers requiring rules to be made or requiring amendments to the rules. I disagree; I simply do not see the nexus.

Under Clauses 8 and 9, any number of rules—or changes or amendments to existing rules—might be made or required within the framework of the Online Procedure Rules. Such rules or amendments might well offend against the principles that the Lord Chief Justice would wish to impose on them. That could occur even in the context of existing designated specified proceedings. It follows that the concurrence requirement should be applicable to the rule-requiring, rule-amending or rule-repealing powers under Clauses 8 and 9—perhaps only as a safeguard and possibly in the hope that they will not be needed—and that the consultation preceding the concurrence requirement should be effective but, against the danger that it is not, I suggest that the amendments are required. We support them.

[Baroness Drake]

My Lords, I support Amendment 22 to Clause 8. I will steer clear of debate on Clause 9, being neither a judge nor a barrister or solicitor.

In Committee, deep concerns were expressed about the extent of the ministerial powers in the Bill, which could result in rules that set digital engagement and participation in online courts as compulsory conditions for access to justice in civil proceedings. In effect, the ministerial powers in the Bill have the potential to require people to choose between online proceedings or not pursuing legal claims. The Constitution Committee shared those concerns. The Minister sought to mitigate those concerns by giving assurances as to the Government’s intentions. In Committee, in response to my noble friend Lady Corston, the Minister commented:

“We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular”.


However, Clause 8 explicitly allows Ministers to both instruct and overrule that committee of experts.

On a further occasion, the Minister gave an assurance that,

“judicial discretion … ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice”.

However, as the noble and learned Lord, Lord Mackay, so acutely observed in Committee:

“It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that”.—[Official Report, 10/6/19; cols. 287-89.]


In summary, notwithstanding ministerial assurances, Clause 8 confers powers on Ministers to require specific provisions to be included in the Online Procedure Rules which the Online Procedure Rule Committee must comply with. Clause 8 also requires that the rules that the committee is required to make must be in accordance with Clause 7, but that clause gives the Minister explicit powers to disallow rules made by the Online Procedure Rule Committee of experts. Clause 8 gives Ministers considerable scope but fails to frame those powers in a way that ensures access to justice and does not give rise to the potential of a person having to choose between online court proceedings or not pursuing their case.

There are real concerns across the House about the potential of the powers given to Ministers in Clause 7, and I will not replay them here, but the case for Amendment 22, which introduces a degree of control over the exercise of those powers by requiring the Minister to secure the concurrence of the Lord Chief Justice, who is the head of the judiciary and is ultimately responsible for the delivery of justice, is, I believe, compelling.

[Lord Beecham]

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

Courts and Tribunals (Online Procedure) Bill [HL]

Baroness Drake Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, Amendment 10 in my name gives the right to respond, in addition to the person initiating the claim, to choose whether the new procedure applies. Amendment 11 then provides that, in the event of disagreement between the parties, the relevant court or tribunal will determine which course to follow—the matter just referred to by the noble Lord. Indeed, I concur with all the issues raised by the three Members of your Lordships’ House who have spoken already in this debate.

I confess that my drafting is somewhat less than elegant, but this is an important issue, given the difficulty that many will have with an online process, stemming from unfamiliarity with the process or medical or mental health issues. The report of the Constitution Committee of 7 June, to which reference has just been made, raises serious concerns about the process that go beyond the matters referred to in these amendments but are most apposite to them.

The committee declares:

“It is unsatisfactory for legislation to be drafted in a way that fails to acknowledge the fundamental right to a fair hearing, both at common law and under the European Convention on Human Rights. While ministers may have no intention of using the powers provided by the Bill to undermine the right to an oral hearing, it is incumbent on Parliament to frame the powers it confers in a way that acknowledges and respects fundamental constitutional principles”.


The committee expresses its concern that,

“the Bill confers broad powers on ministers to limit oral hearings in a much wider range of cases than is currently envisaged”,

and suggests:

“One way to secure appropriate control over this power would be to require not just consultation with the Lord Chief Justice, or the Senior President of Tribunals where appropriate, but their concurrence”,


in those proposals. In other words, consultation has to be taken seriously in these circumstances—perhaps more seriously than in most, given what is at stake here for the workings of our legal system.

[Baroness Drake (Lab)]

My Lords, I support the intentions of Amendments 1 and 6 in the name of my noble friend Lord Ponsonby and Amendments 10 and 11 in the name of my noble friend Lord Beecham. In summary, they remove the potential requirement that people must choose between online proceedings and not pursuing legal claims, strengthen judicial discretion on the need for a full court hearing and protect the right of parties to proceedings to seek oral hearings.

It is right that courts and tribunals be modernised, but in utilising new technologies access to justice must not be undermined. The impact assessment notes that the conventional economic rationale for government intervention is based on efficiency or equity arguments. The rationale here is efficiency, referencing,

“outdated processes … costly for both the Government and court users”.

A reliance on an efficiency rationale must not prejudice access to justice, but I fear that that is the Bill’s potential impact. Clauses 1 to 3 give Ministers extremely broad powers to replace traditional proceedings with online ones, allowing for the possibility of online proceedings being the only option in the absence of Clause 3 regulation permitting a person to choose between online or conventional proceedings.

The Minister can give assurances as to the Government’s intentions but they are not binding over time. The Government argue that additional safeguards are not needed, but the Online Procedure Rule Committee’s powers will be far greater than those of any existing rule committees. Indeed, concerns about access to justice are heightened because the Bill confers powers to limit oral hearings in a wider range of cases than was envisaged by Lord Justice Briggs’s recommendation to introduce an online court to resolve low-value civil money claims. I quote the noble and learned Lord, Lord Judge, at Second Reading:

“Effectively, this Bill covers all non-criminal proceedings … this is a serious, wide-ranging Bill with wide-ranging consequences”.—[Official Report, 14/5/19; col. 1511.]


It may be argued that protecting access to justice is implicit in the Bill, but I believe that Parliament needs greater confidence; it should not rest on judicial intervention or ministerial assurance to address concerns about ministerial powers. I recall the Minister addressing this House on the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 in response to concerns that such fees would restrict access to justice. He asserted:

“We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims”.—[Official Report, 8/7/13; col. 85.]


In July 2017, the Supreme Court unanimously held that, as the order prevented access to justice, tribunal fees were unlawful and must be quashed with immediate effect.

As many noble Lords have said, curtailing the use of oral hearings will have a particular impact on access to justice for vulnerable court users with limited digital means, digital literacy and general literacy skills. The Constitution Committee observed that,

“the Office for National Statistics concluded that … 5.3 million adults in the UK … could be characterised as ‘internet non-users’”.

However, the committee noted that this figure may understate the problem. It said:

“Such figures do not take into account those with limited digital skills, for whom basic browsing and messaging may be within their capabilities but the complexity of online legal forms may not”.


People with limited general literacy skills will be disadvantaged by proceedings conducted solely in writing without access to oral hearings. As has been referred to, the charity Mind reports how people with mental health problems are disproportionately likely to experience digital exclusion, struggle with digital engagement and are nearly twice as likely to experience legal problems.

The Government’s objective is to devise new rules that will focus on users being able to solve grievances and resolve their issues online at the earliest opportunity, as well as to encourage more people to resolve disputes before they reach the hearing stage. If the Government are right in their assumptions, which are still to be tested, many people will prefer to use online proceedings voluntarily and efficiencies will be gained. However, that is not compulsion; people should retain the right to seek access to an oral hearing. Ministerial powers with the potential to require people to choose between online proceedings or not pursuing legal claims carry the real risk of incompatibility with the principle of access to justice. Amendments 1, 6, 10 and 11 seek to address that risk.

--- Later in debate ---

[Lord Keen of Elie]

We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular.

[Baroness Drake]

Does the Minister accept that Clause 7 gives the Minister powers to override or disallow the views of the Online Procedure Rule Committee? However meritorious its views, the Minister would have the power to override them.

[Lord Keen of Elie]

There are circumstances in which the Minister may give directions to the committee—I accept that—and that reflects the current position with regard to the other rule committees already in existence, including the tribunal rules, the civil rules and the criminal rules. It exists by way of an executive direction and is there for good reason as a fallback. I understand that the power has been used only once with regard to the existing committees, to address a potential anomaly in the existing rules. It is an exceptional power but it is there because it reflects the existing power in the provisions for the other rule committees.

European Union (Withdrawal) Bill

Baroness Drake Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord True]

My Lords, I could well be tempted and I suppose that it depends on how quickly you can see paint dry. I leave it to people outside your Lordships’ House to judge the progress that we have made in the first four days, despite some of the undertakings and understandings of the Opposition Front Bench. Perhaps I may say that I greatly value and respect the Bench whose behaviour has been absolutely admirable and exemplary. I do not think that we have made fast enough progress, which is not justified. There are important issues to raise and I have simply suggested that these are some things that, as with the reports of your Lordships’ committees, could be discussed in other forums—but surely not during consideration of this little 19-clause Bill with a rather narrowly defined purpose and given all the other legislation that we have coming forward.

I oppose this amendment. It suggests a new mechanism for the Government in relation to our future relations with the EU which is unnecessary. I look forward to seeing the progress that the noble Baroness wishes to see being made.

[Baroness Drake (Lab)]

My Lords, I rise to speak to Amendments 89A, 129A and 157A in the group and I thank the noble Baronesses, Lady Altmann and Lady Burt, for their support. Many noble Lords have already referred to the executive powers in this Bill which go beyond those needed to deliver the intent of preserving and converting existing EU law into domestic law to provide legal continuity on exit day. Clause 7, for example, gives Ministers corrective powers to do whatever they consider appropriate to address a deficiency in retained law. As the Constitution Committee has observed, as wide a subjective concept as “appropriate”, applied to such a broad term as “deficiency”, makes Ministers’ regulation-making powers potentially open-ended. Ministerial assurances on their use cannot substitute for a provision in the Bill to prevent the correcting powers being used to effect substantial changes to implement government policy outwith the stated intention of this Bill.

There are many areas of substantive policy which could be impacted by these open-ended powers, a concern that is captured in the long list of amendments to the Bill. I say to the noble Lord, Lord True, that if the Government more quickly took action to restrain the powers in Clauses 7, 8, 9 and elsewhere, and reflected the concerns that people have, the list of amendments that the Committee is debating might actually reduce in number. I am sure that he did not intend it, but choosing his moment at 10.25 pm to express his frustration at the amount of time spent on certain amendments, just at the point when we are discussing women’s and family issues, does not help the case that there is increasing anxiety that the Conservatives want to cut back on employment rights, particularly as they are afforded to pregnant women and mothers.

The particular focus of these amendments is to prevent powers in Clauses 7, 8 and 9 being used to limit the scope of or to weaken rights relating to maternity, paternity, adoption, parental rights, the rights of pregnant women and breastfeeding mothers. Such rights are important because they affect the status of half of the population of this country. That is not a small or minority group, it is half of the population. When millions of women voted in the EU referendum to remain or to leave, I doubt that many will have done so in the belief that the result could prejudice their rights or status. These amendments reflect real concerns about the potential impact of Brexit and the application of this Bill on women, expressed by a broad coalition of women and equality organisations such as the Fawcett Society, Women on Boards, the British Pregnancy Advisory Service, Girlguiding and many others. Bodies such as the Equality and Human Rights Commission share an anxiety that in setting the future of the UK economy, the Government could weaken women’s status in their vision of a differently regulated country.

The treatment of women who are pregnant and who care for children is fundamental to their ability to achieve social and economic equality. The penalty paid for child-bearing and caring is at the heart of the discrimination and loss of opportunity that many women continue to experience. It affects women who have been pregnant, are pregnant, may become pregnant and, by gender association, who do not have children. They all experience the consequences of a collective stereotyping of women.

--- Later in debate ---

[Baroness Drake]

The Minister’s reference to enforcement is very important. Is he giving an assurance that there are no government plans to cap compensation in discrimination cases when we leave the EU?

[Lord Duncan of Springbank]

The noble Baroness will recognise that that is part of a discussion for another time. We have already touched on it on more than one occasion. If I may, I will focus primarily on the amendments before us today.

It is important that we recognise that the rights we have cannot be undone. That must be the fundamental guidance. For those who ask whether I can give a categorical assurance that there shall be no erosion of the working time directive, the answer is yes, I can give that assurance. We will not be eroding these rules as they come back or after they come back. It is critical that these rules become and remain functional as we begin to develop our own rulebook. It is right that we should be cognisant of the advances in the evolution of rights whether it be in the EU or elsewhere. We have heard this evening about a number of these rights which we have seen emanating from the UN. We should not be limited in that regard. Time and again we have found ourselves in the vanguard of particular rights. As we consider this suite of amendments, I do not think we should lose sight of the fact that in more than one area on more than one occasion we have pushed rights far further forward than had been the case of the median rights within the EU as a whole.

European Union (Withdrawal) Bill

Baroness Drake Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Judd (Lab)]

My Lords, I shall speak to Amendment 23A but, before I do so, I should like to say how much I admired the clarity with which my noble friend introduced the lead amendment in the group and how warmly I support the amendment in the name of my noble friend Lady Kennedy on the issue of human rights.

I have two points to make. The first is that the anxiety out there in British society should not be underestimated. There is a great deal of anxiety among extremely good quality people who are doing dedicated work in the spheres with which we are concerned. Secondly, as a layman in no way involved in practising law, I have always understood as a citizen that what is terribly important about the law is its clarity and transparency. As we consider the amendments we must therefore not inadvertently allow doubt and misgiving as to whether there has been full transparency, and full commitment to that transparency, to creep into our future.

It is therefore very important, and I make no apology for proposing it, to get written into the Bill the fact that we seek to protect existing rights of citizens in the spheres affected. I shall read to the Committee the points that Amendment 23A says should be, and seen to be, central to the deliberations and negotiations that lie ahead. They include: human rights and equality, in which we have made great progress; privacy and data protection, which we have debated at great length in this House; and immigration and asylum protections—I am certainly one who believes there is much more to be done in that realm, but the Bill is not about that. My amendment is therefore not about that either but about protecting what we have. The other points are,

“criminal justice protections … employment protections … environment and public health protections … consumer protection … access to housing, education and health and social care”.

I want to feel confident, in the immense amount of work lies ahead, that those issues will be in the Bill as primary considerations. I hope that the Minister, for whom my admiration increases all the time with the clarity with which he responds to amendments, will be able to reassure me that there will be some way to ensure that these things are not just implied in what is proposed but are there specifically.

[Baroness Drake (Lab)]

My Lords, I shall speak to Amendment 21. The Bill gives Ministers what the Constitution Committee described as,

“an unprecedented and extraordinary portmanteau of powers upon which the Government could draw”.

We are now seeing growing concern that by our giving such powers, well beyond those needed to effect legal continuity, Ministers could use them to effect substantive policy changes. That is what is at the heart of this tension.

Many important protections currently enjoyed by UK citizens are not written into Acts of Parliament but underpinned by membership of the EU, which cannot be weakened by the UK Government. Once some of those protections are brought into domestic law by secondary legislation, there is no assurance that they can be changed only by primary legislation. The Bill will also allow Ministers to use the delegated powers contained in existing UK legislation to effect significant policy changes to retained EU law. The powers under Schedule 8 have already been referred to.

The merit of Amendment 21 is that it poses greater protection by enhancing scrutiny of ministerial amendments to retained EU law and restricting the modification of retained EU law by subordinate legislation to technical provisions. Such modifications could not limit the scope of or weaken standards and protections afforded to UK citizens. Amendment 21 makes a clear distinction, which the Bill fails to do, between technical and substantive policy changes—between necessary amendments to retained EU law to provide legal continuity and the wider issue of discretionary amendments that implement substantive changes to policy.

I want to refer to employment rights and consumer standards to illustrate the amendment’s merits. There are many EU-derived equality and employment protections enjoyed by the people of this country that are essential ingredients of economic fairness and social cohesion. These are rights which working people now take for granted, including rights to paid holidays, equal pay for equal-value work and equal treatment in the workplace.

Brexit: Human Rights

Baroness Drake Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Drake (Lab)]

My Lords, I congratulate my noble friend Lord Cashman on securing this debate on human rights priorities this evening.

The human rights and equality concerns arising from the EU withdrawal Bill, heightened by the exclusion of the European Charter of Fundamental Rights, relate both to what is captured in domestic law on exit and the intention of government after departure. The Government’s rights-by-rights analysis, published on 5 December, of how everything of legal value in the charter will remain protected by preserving in the Bill the sources which underlie that charter, such as the Human Rights Act and Equality Acts, will require some scrutiny.

The Government have given an undertaking to require a ministerial Statement for any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. There is no such requirement, however, for consistency with the provision of rights underpinning the Belfast/Good Friday agreement, yet the adequacy of the proposed protection of rights will be of particular significance in Northern Ireland. Human rights, equality and employment rights are a central and essential ingredient of the Belfast/Good Friday agreement. In the absence of a functioning Executive at Stormont, the legislature in Northern Ireland is unable to consider the implications of the Bill for those rights. The people do not have a voice in the way that the Northern Ireland Act is intended to work. It would be a travesty if Brexit were achieved at the price of loss of confidence in the rights of the people in Northern Ireland. The narrative must not be defined only by the perceived needs of English voters. As to the future, the amendment or repeal of the Human Rights Act may well be regarded by some as a breach of the Good Friday agreement itself.

More generally, the Government’s proposed manner of protecting equality and human rights on exit from the EU is weakened by a lack of confidence in their longer-term intention. The recent Conservative manifesto stated that the human rights legal framework may be reviewed post Brexit. Not so long ago, the Government’s Red Tape Challenge reviewed the Equality Act 2010 and canvassed views on repealing the Act itself. The Government need to demonstrate that we will not be walking back to our future after Brexit by setting out a clear vision on how the UK will remain a global leader on equality and human rights once we have left the EU and, as my noble friend Lord Cashman has urged, to commit to the principle that there will no dilution of equality and human rights law in this country.

Queen’s Speech

Baroness Drake Excerpts

Wednesday 28th June 2017 Lords Chamber

[Baroness Drake (Lab)]

My Lords, there are various reasons why voters in June denied the Government the mandate and the landslide they expected, but the world of work will have fuelled their sense of unfairness and loss of well-being. Wages have been weak for much of the period since 2008 and cannot be explained simply by low productivity or slack in the labour market. The Bank of England’s chief economist identified structural factors that have contributed to weakening wages: technology, globalisation, the changing nature of work and the shifting relationship between employers and employees. Increasing self-employment, zero-hours contracts, flexible and part-time working have further weakened employees’ bargaining power and fed heightened insecurity across the low-income and middle-income labour market. He referred to a modern period of divide and conquer, a growing world of “divisible” jobs and idiosyncratic wages raising important economic and social issues about the modern workplace—trends that are unlikely to reverse.

All of this makes the defence of employment rights and the avoidance of regulatory dumping so important. David Davis wrote in ConservativeHome:

“All the empirical studies show that it is not employment regulation that stultifies economic growth”—


a concession at odds with the red tape review, which specifically targeted employment law and equalities for scrutiny, resulting in, for example, the qualifying period for protection from unfair dismissal rising to two years and hefty fees for workers accessing employment tribunals. In the same article he commented:

“There is also a political, or perhaps sentimental point. The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights”.


That is not a statement of conviction on delivering a fairer society; it is a statement of political pragmatism. The working class voted for Brexit, so do not rattle their cage—at the moment. But employment rights are part of a fair and inclusive society, not a reward for the working class to be given or removed on the mood swing of a political class.

The Prime Minister promised that,

“existing workers’ legal rights will continue to be guaranteed in law—and they will be guaranteed as long as I am Prime Minister”.

But for how long can she police her own promise? The Chancellor is right: people did not vote to become poorer or less secure. Employment rights and living standards should be central in negotiations on the UK’s future relationship with the EU. Withdrawal would mean that rights currently guaranteed by law would no longer be so guaranteed. Some employment rights are enshrined in UK primary legislation while many are located in secondary legislation. The implications for the great repeal Bill of those many rights located in secondary legislation are very uncertain. If in the Bill employment rights contained in secondary legislation do not move into primary legislation, they would be exposed to simple revocation by secondary legislation.

The Government give three reasons for using secondary legislation in the great repeal Bill: to implement the Article 50 withdrawal agreement; to make adjustments to policy, correcting the acquis so that it works properly from day one; and to provide for a level of detail inappropriate for a Bill. The Delegated Powers Committee has expressed concern that each of these reasons may well result in secondary legislation being used to implement significant and controversial policy matters involving fundamental policy choices. As to secondary legislation providing for a level of detail inappropriate for a Bill, the committee observed:

“This is uncontroversial as a general principle but, in the context of withdrawal from the EU, is more controversial. The main reason why, since 1973, secondary legislation has been used to give effect to most EU law is not because the law is unsuitable for being dealt with in a bill. It is much more to do with the fact that Parliament would have been overwhelmed with the sheer volume of primary legislation … had it been the principal vehicle of transposition”.


As it is now 10 o’clock I will rest on the argument that my noble friend Lord Adonis eloquently reasoned. Put simply, leaving the EU is frighteningly bonkers. In the absence of EU treaty commitments to protect workers and to limit the further driving down of wages, common employment standards must be part of future trade deals. They must be given the same status as technical specifications, consumer protections, and safety and environmental standards. Without integrating them formally into future trade deals, the Government’s promise in the gracious Speech to seek to enhance rights and protections in the workplace will be simply untrue.