Retained EU Law (Revocation and Reform) Bill

Lord Hendy Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I add my congratulations to the noble Baroness, Lady Bray, and my noble friend Lady O’Grady on their excellent maiden speeches.

As a member of the Delegated Powers and Regulatory Reform Committee, I of course agree with its report on the Bill and that of the Secondary Legislation Scrutiny Committee. Both reports reflect the statement of principles in their 2021 reports, Democracy Denied? and Government by Diktat.

I want to focus on one aspect of the Bill: the sunset clause which facilitates the removal of our employment rights without parliamentary scrutiny, as there will be no draft legislation to scrutinise. Twice in recent weeks, my noble friend Lord Woodley has asked whether the Minister will retain the Transfer of Undertakings (Protection of Employment) Regulations. The Minister declined to say. If he sits tight and does nothing, that important suite of rights will evaporate on New Year’s Day and the noble Lord, Lord Woodley, will not be able to oppose, amend or even debate it.

The Minster claimed on 23 January that:

“UK employment rights do not depend on EU law.”—[Official Report, 23/1/23; col. 3.]


He repeated the claim on 1 February. The truth is that some do not but most do. My noble friends Lady O’Grady, Lady Crawley and Lord Monks have mentioned some. I will mention some others. The right to a safe place of work, system of work, safe equipment and competent colleagues is a homegrown common law right originating in 1837 and articulated in the case of Wilsons & Clyde Coal v English in 1938.

The Safety Representatives and Safety Committees Regulations were made under our domestic Health and Safety at Work etc. Act. Their provenance was one of the recommendations of the Piper Alpha disaster inquiry. However, the Health and Safety (Consultation with Employees) Regulations, which make similar provisions about safety representatives and safety committees where no union is recognised were made under the European Communities Act to implement EU law. In fact, most employment rights and health and safety are EU law.

I will give some examples to illustrate the scale of this. We are talking about regulations on: management of health and safety, workplace health and safety, work equipment, PPE, manual handling, display screen equipment, carcinogens, biological agents, construction, safety signs, pregnant women, drilling, mining, chemical agents, dangerous substances, explosive atmospheres, fishing vessels, ionising radiation, lifts, machinery, biocidal products, major hazards, transport, working time, work at height, temporary and mobile worksites, explosive atmospheres, young persons, physical agents, noise, vibration, and offshore installation safety cases.

Clause 1(4)(a) of this Bill will sweep away regulations made under the European Communities Act. But the regulations I have mentioned will survive because they are made under the Health and Safety at Work etc. Act. The fate of regulations made under both Acts such as the Control of Asbestos Regulations is not clear. The answer, however, is academic. All these statutory instruments will be caught by Clause 1(4)(b) since they were made to implement EU law, whatever their statutory foundation.

Consequently, all the Minister has to do is to sit on his hands and all these vital protections hitherto enjoyed by our 30 million workers will disappear in a puff of smoke without parliamentary scrutiny. That is unacceptable and also appears to be a flouting of the obligations we undertook to maintain and implement health and safety laws under Articles 386 to 388 and 399 of the trade and co-operation agreement.

Employment Policies

Lord Hendy Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Callanan (Con)]

I am proud to say that the UK has one of the highest rates of employment practice in the world. We have one of the safest working environments in the world, and it is our full intention that that should continue.

[Lord Hendy (Lab)]

My Lords, the Minister said that the UK is in compliance with ILO standards. The problem for him is that the supervisory bodies of the ILO have consistently said that the United Kingdom is in breach of numerous ILO conventions. Not only that but the Council of Europe has also found that the United Kingdom is in breach of various articles and provisions of the European Social Charter, which the UK has ratified.

[Lord Callanan (Con)]

The European Social Charter no longer applies to us, as we are not in the European Union any longer. The noble Lord may have noticed that we had a referendum on the subject.

[Lord Hendy (Lab)]

My Lords—

[Noble Lords]

Order!

Employers: Fire and Rehire

Lord Hendy Excerpts

Thursday 3rd November 2022 Lords Chamber

[Lord Callanan (Con)]

As the noble Lord will be aware, the Government are bringing forward legislation to stop those kinds of practices and extend minimum wage provisions to seafarers. The DfT is progressing that.

[Lord Hendy (Lab)]

My Lords, when will the long-promised employment Bill be presented to the House? On previous occasions the Minister has said “when parliamentary time allows”. We notice that parliamentary time has allowed legislation to further restrict the right to strike and proposals to create a bonfire of workers’ rights derived from EU directives. Could the Minister not find a little bit of time for the employment Bill promised in 2019?

[Lord Callanan (Con)]

The noble Lord has answered his own question. The position remains that we will bring forward an employment rights Bill when parliamentary time allows. I point out that the Government are supporting numerous Private Member’s Bills which have been introduced, particularly in the other place, such as the Neonatal Care (Leave and Pay) Bill, Employment (Allocation of Tips) Bill, Protection from Redundancy (Pregnancy and Family Leave) Bill and the Carer’s Leave Bill. Many of these provisions are being taken forward.

Workforce: Trades Union Congress

Lord Hendy Excerpts

Wednesday 19th October 2022 Lords Chamber

[Lord Callanan (Con)]

Skills is an important part of the Government’s agenda; we are spending some £2.5 billion, directed through the Department for Education, on building up skills provision across the economy. We remain open to working with trade unions, employers and whoever has good proposals for the future.

[Lord Hendy (Lab)]

My Lords, this is not just a question of being “open” to working with trade unions; it is a question of whether the representatives of 30 million workers in this country should have a seat at the table to discuss with employers and with government the answers to many of our problems—which cannot be in doubt. Will the Minister reconsider setting up something formal between the TUC, the CBI, representatives of small business and government to look at the problems this country is facing?

[Lord Callanan (Con)]

I said that we remain open to meeting trade unions. However, the noble Lord’s figures are wrong: trade unions do not represent 30 million workers in this country; only 23% of workers are members of trade unions, so more than three-quarters are not represented by them.

Four-Day Working Week

Lord Hendy Excerpts

Monday 5th September 2022 Lords Chamber

[Lord Callanan (Con)]

Well, we have no plans for a four-day week; we certainly do not have any plans for a three-day week.

[Lord Hendy (Lab)]

My Lords, it is all very well to say that the negotiation of working time should be between individuals and businesses, and I understand the Minister’s logic in saying so, but the reality is that employers have overwhelming power in relation to individuals. Is it not necessary to allow trade unions to speak on their behalf, and should the ministry not be encouraging collective bargaining on these issues?

[Lord Callanan (Con)]

In this country, we believe in freedom of choice. People are free to join a trade union if they wish and, as I have remarked before, only a minority have chosen to do so.

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022

Lord Hendy Excerpts

Monday 18th July 2022 Lords Chamber

[Lord Monks (Lab)]

My Lords, this SI is the latest in a long line of steps, taken by successive Conservative Governments, to wrap trade unions in ever-more complex and restrictive dollops of red tape. It is almost a rite of passage for each Conservative Administration to slap fresh restrictions on unions. This SI is the latest in a long line. As my noble friend Lord Woodley has said, the Government were supposed to be introducing an employment Bill with new rights for workers—a positive step forward—but where is it? We keep asking, and again I pose that question to the Minister.

The Government were going to tackle the abusive practices of P&O Ferries in sacking staff and replacing them with agency workers, but where has that gone? Instead, they are now encouraging, through this SI, employers in a dispute to replace workers with agency staff. That looks to me like a U-turn, and one that is unacceptable to many of us.

A wiser Government would learn from their own successful experience with the furlough scheme, where they worked closely with unions and the TUC to devise a scheme that did much to see our country through the pandemic in reasonable shape. That degree of wisdom is sadly missing in this exercise we are talking about tonight.

A wiser Government would recognise that the current inflation is not due to wages but to Covid, the war in Ukraine and Brexit-related matters. In fact, our country’s experience is of stagnant wages and soaring profits, with real wages having been pretty flat since 2000, with the exception of executive pay, in the largest companies in particular, which grew during the pandemic alone by 29%. Is it any wonder that there could be an increase in labour unrest in the forthcoming period? Workers have got plenty to be restless about.

A wiser Government would seek to address this situation, not by playing to their own political gallery with this kind of gesture, but instead by seeking to work with unions, employers and all those concerned that might have some way of helping this country through a very difficult economic period ahead. Will the Minister, even at this stage, reflect on the request from many of us here tonight to put this SI in the recycling bin and tackle the real problems?

[Lord Hendy (Lab)]

My Lords, I support the amendment moved by my noble friend Lord Collins. Wages are rising at 4% per annum and prices are increasing at 11% per annum. It is a sad thing that the Government’s response is to take yet further measures to stop workers exercising the only leverage they have to maintain or even improve their standard of living. The Minister frankly admitted this evening that the purpose of the statutory instrument in relation to damages was to deter unions from striking, and that would be achieved by increasing the cap on damages by 400%. The point that I wish to raise with the Minister is that this further regulation of trade union freedom may well put the United Kingdom in breach of its international legal obligations, and it is to that that I will restrict my remarks.

My noble friend Lord Collins mentioned Article 3 of Convention 87 of the ILO, which is the most fundamental of all the ILO conventions, the international standards of labour. Article 3 guarantees that unions and employers’ associations can organise their activities

“free from any interference which would restrict this right or impede the lawful exercise thereof.”

Among the activities that unions must be free to organise is, of course, industrial action. Consequently, the relevant supervisory committee of the ILO—the quasi-judicial Committee of Experts on the Application of Conventions and Recommendations—has said:

“Provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike.”


My noble friend Lord Collins mentioned a decision of the Committee on Freedom of Association to similar effect. The authoritative interpretation of conventions by these committees is recognised not only by the European Court of Human Rights and other courts, such as the Supreme Court of Canada, but by our domestic courts. Those committees have held for some time that, among other non-conformities, British law currently does not comply with the requirements of Convention 87, Article 3 because workers taking industrial action are inadequately protected.

I hope that the Minister is not going to say that he disagrees with the rulings of those two ILO committees. They are the supervisory bodies of Convention 87, and it would sound like the first-year law student who writes an essay saying that he disagrees with a judgment of the Supreme Court. I am sure the Minister will not be saying anything like that.

I wish to make an additional point before I sit down. Breach of an ILO convention is bad enough, particularly one ratified by and binding on the United Kingdom, of which the United Kingdom was the very first signatory back in 1948. Secondly, the EU-UK Trade and Cooperation Agreement of 2021 involved the Government undertaking post Brexit to comply with various international treaties by which they were already bound. The effect is that non-compliance with these treaties is not only a breach of them but is unlawful on the additional ground that it is a breach of the Trade and Cooperation Agreement. Paragraph 2 of Article 399 states:

“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.

Paragraph 5 states:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”


The UK has the obligation not only to respect and promote Convention 87, but also to effectively implement it. Those obligations surely prevent the UK adding an additional obstacle to the effective exercise of the right to strike by allowing agency strike breakers.

[Lord Paddick (LD)]

My Lords, we on these Benches are very concerned about the impact of strikes such as those planned to close down the rail network, preventing hard-working people, including emergency workers already suffering under the cost-of-living crisis, getting to work, but we do not believe these regulations are the answer.

This first statutory instrument appears to be a sham. It is another pretence at doing something instead of what the Government should actually be doing, which is enabling, empowering and facilitating employers to negotiate effectively with their employees and the trade unions that represent them to prevent the need for strikes in the first place. If the Government were taking effective action to mitigate the devastating further increases in the cost of gas and electricity this winter and the associated increases in the costs of essentials such as food and clothing, there would be less of a demand for large wage increases in the first place.

The report of the Secondary Legislation Scrutiny Committee not only casts doubt on the practical effectiveness of the change brought about by this SI, but also points out the weakness of the Government’s own impact assessment, as the noble Lord, Lord Balfe, has said.

Using agency staff to backfill those on strike is likely to prolong disputes—that is, even if employers can get agency workers. As the Trades Union Congress and the Recruitment and Employment Confederation have said, with 1.3 million vacancies in the UK, the number of agency staff available is declining rapidly, the opportunities for them to be employed are increasing and they will choose employment that does not involve having to cross picket lines.

According to UNISON, research shows that, with the best will in the world, agency staff less familiar with the workplace and working practices are more likely to make mistakes, have or cause accidents and cause harm to themselves and others, mainly because of a lack of training, lack of access to protective equipment and lack of supervision. If the Government think there are sufficient agency train drivers, signallers and trained station staff, who, for example, have to assist disabled passengers on and off trains, they are deluding themselves.

Even the British Medical Association is opposed to these regulations. The Government are required to consult before making changes, and yet, as other noble Lords have said, the last consultation was seven years ago, when, as a result, similar proposals were abandoned. Surely, a seven-year-old consultation is not sufficient, as the BMA suggests, and as the noble Lord, Lord Collins of Highbury, has said.

Even in that consultation seven years ago, the majority of businesses supplying agency staff said that the changes would have a negative effect. Some 49% of the respondents said it would have a negative impact on agency workers. On the impact on employers, 40% said it would have a negative impact. Only 24% said it would have a positive impact, as it would worsen the relationship between employers and employees if they backfilled with agency workers.

Despite all of that—despite the majority on all sides saying that this is a bad idea—the Explanatory Memorandum states:

“The Government has carefully considered all these points and remains of the view that removing regulation 7 is the right course of action.”


If that is not the definition of pig-headedness, I do not know what is.

As the noble Lord, Lord Hendy, has set out in detail, doubt has also been cast on whether the change is compatible with international law, for which this Government have scant regard—be it genuine asylum seekers seeking sanctuary in the UK, or their proposed unilateral action on the Northern Ireland protocol. This Government are rapidly moving the UK towards being seen by others as a rogue state.

This statutory instrument is a poor and ineffective substitute for what the Government should be doing: being more effective in tackling the cost-of-living crisis and getting employees and employers around the table to prevent strike action in the first place.

With regard to the increase in the limit for damages for illegal strikes, rarely if ever is industrial action brought by trade unions if it is illegal. Other than intimidating trade unionists, we question the timing of such changes.

We support the amendment in the name of the noble Lord, Lord Collins of Highbury.

Strikes: Cover by Agency Workers

Lord Hendy Excerpts

Tuesday 5th July 2022 Lords Chamber

[Lord Callanan (Con)]

We are always happy to work with organisations that want to work with us. The P&O situation is entirely different; it seems clear that P&O acted unlawfully, although that is being investigated at the moment. We have a commitment to bring in legislation for minimum wage protection for seafarers.

[Lord Hendy (Lab)]

My Lords, prices have been rising at 9.1% per annum and wages are rising, on average, at 4%. This means that working people are looking at a cut in real wages of 5% per annum. Would not the Government be better off trying to cap prices, rather than undermining trade unions for defending the living standards of working people?

[Lord Callanan (Con)]

If the view of the modern Labour Party is that capping prices is effective in a modern industrialised market economy then I truly despair.

Fire and Rehire

Lord Hendy Excerpts

Wednesday 15th June 2022 Lords Chamber

[Lord Callanan (Con)]

I said that we are committed to bringing forward a code and we will consult on it shortly, but as I said in response to the noble Lord, Lord Woodley, it is a complicated area of industrial relations and employment law. I assume that even the Labour Party would accept that we cannot ban redundancy if a company is going bankrupt. Therefore, by banning fire and rehire we would end up banning the rehiring part of it, which I am sure nobody wants to see.

[Lord Hendy (Lab)]

My Lords, I take the point that banning fire and rehire would be extremely difficult, but what is the objection to regulating it by law?

[Lord Callanan (Con)]

I am grateful to the noble Lord for accepting the point that I am making: it is a complicated area and an outright ban would not be appropriate. Therefore, I assume that he will not support the Bill from his noble friend. However, we are prepared to regulate in this sector, which is why we are talking about introducing a code. That code will have a positive effect and will be able to be taken into account in any industrial tribunal proceedings, potentially resulting in an increase in compensation awarded.

Carers: Unpaid Leave

Lord Hendy Excerpts

Tuesday 14th June 2022 Lords Chamber

[Lord Hendy (Lab)]

I invite the Minister to consider, within his department, whether this change could not be brought about by a tweaking of the Working Time Regulations, which are secondary legislation?

[Lord Callanan (Con)]

No, as I said in response to an earlier question, my understanding is that this needs primary legislation. I will certainly check that, but I do not think the noble Lord is correct.

Queen’s Speech

Lord Hendy Excerpts

Monday 16th May 2022 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I follow my noble friends Lady Donaghy, Lord Monks and Lord Haskel in regretting that the Government have again broken their 2019 election promise to introduce an employment Bill. An employment Bill has been promised many times in this House and in the other place. On 6 April, on behalf of my noble friend Lord Woodley, I put to the Minister, the noble Lord, Lord Callanan, the simple question: when do the Government intend to introduce the employment Bill? The Minister’s response did not answer that question. We now know the answer: there will be no such Bill. However, there will be a Brexit freedoms Bill, no doubt to remove many of our workers’ rights derived from EU legislation, yet the need to strengthen employment rights and to enforce them gets stronger by the day. More than 9 million people live in poverty in working households. The real value of wages has not increased since 2008 and is falling. We are facing a cost of living tsunami.

On St Patrick’s Day, 17 March, P&O Ferries demonstrated once and for all the almost total failure of our labour laws to protect workers. P&O flouted the right to be consulted over redundancies; the right not to be unfairly dismissed; the right not to be dismissed on a transfer of undertaking; the right not to be discriminated against on grounds of nationality; the right not to be made an offer to end collective bargaining; and the right not to be penalised for trade union membership and support for collective bargaining.

Because compensation for breach of most of those rights is statutorily capped, the employer was able to make offers that were inevitably irresistible to those faced with the alternative of pursuing tribunal claims that were unlikely to be heard within 12 months because of underfunding of the Courts & Tribunals Service, where successfully obtaining awards exceeding the offers was unpredictable and where statistics show that half of all awards made by tribunals are not paid in full.

The result was that 786 seafarers were left on the beach. The law had not protected them. Yet the law also denied them an industrial remedy: to put pressure on P&O by inviting secondary industrial action by dockers, lorry drivers and others would have led to an immediate injunction, since all secondary action in the UK is prohibited by statute.

Make no mistake: P&O’s ploy will be an exemplar for other employers. There will be a race to the bottom. The situation cries out for an employment Bill. The measures in the all-Peers letter of 31 March from the noble Baroness, Lady Vere, will be useful but they do not go far enough. An employment Bill is required to do at least the following: restore the right to take secondary industrial action, particularly where the employer has avoided primary industrial action by sacking the entire workforce; provide for a right to an injunction to enforce the duties exemplified in this case; and remove the statutory caps on compensation so that compensation matches the actual loss suffered—as in virtually every other area of the law.

I hope the Minister will feel able to say that an employment Bill is now essential and that the Brexit freedoms Bill will not reduce any employment right currently enjoyed by a British worker.