Retained EU Law (Revocation and Reform) Bill

Debate between Lord Hendy and Lord Lisvane

Committee stage
Thursday 23rd February 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I support every word just spoken by the noble Lord, Lord Wilson of Dinton, and earlier by the noble Baroness, Lady Meacher.

On the generality of the issues raised by this group of amendments, I say very gently to the noble Lord, Lord Frost, that he might like to consider whether his intervention earlier damaged the Government’s case rather more than assisting it. I have been involved, in one way or another, with the processes of this institution now for more than half a century. I have to say that his description of delegated legislation, and the implications of Parliament handing it, is not one I recognise.

[Lord Hendy (Lab)]

My Lords, this Bill is objectionable both in form and in content. As to form, I cannot possibly improve on the speech of the noble Baroness, Lady Meacher. Like her, I have been a member of the Delegated Powers and Regulatory Reform Committee, and I absolutely support and uphold the principles that it has enunciated, in particular in relation to this Bill.

There is one point that I could add to that, which is that we have had discussions this morning about how long it would take to draft, introduce and debate statutory instruments to replace those EU-derived laws which are sought to be removed. Let me just point out that the sunset clause means that, if the Minister decides not to introduce a statutory instrument to preserve those rights, they will disappear without any debate whatever. They will just simply evaporate.

As to content, my concern is with workers’ rights. I have to declare that I have spent most of the past 45 years of practice at the Bar dealing with workers’ rights. I want to make a few very short points. First, all the labour law rights, workers’ rights, employment rights—call them what you will—that we are concerned with in the United Kingdom are UK law. Whatever their derivation, whatever their provenance, it is UK law that we are talking about. Let me remind the House that many of the laws that we have, not derived necessarily from the EU, also fulfil other international legal obligations deriving from the International Labour Organization or from the European Social Charter and the European Convention on Human Rights, which are both instruments of the Council of Europe and have nothing whatever to do with the EU.

For example, our unfair dismissal law satisfies ILO and European Social Charter obligations. The protection in Section 146 of the Trade Union Labour Relations (Consolidation) Act 1992, the protection for trade union activists against discrimination for trade union activity, has been moulded by both the ILO jurisprudence and a particular decision of the European Court of Human Rights interpreting Article 11 of the European convention—I refer to Wilson and Palmer v the United Kingdom. Likewise the protection of our right to strike fulfils clear obligations under ILO convention 87, Article 6.4 of the European Social Charter and Article 8 of the International Covenant on Economic, Social and Cultural Rights. All these are treaties and particular provisions which have been specifically ratified by the United Kingdom.

When a lawyer is consulted by a worker or employer on the subject of employment rights because some problem, dispute or issue has arisen, the lawyer does not look to see what the provenance of the law is; the lawyer looks at what UK law has to say about the problem. Let me give the Committee a hypothetical example—I am sure I have done many of these cases in the past. A worker falls off scaffolding at height and is injured. They want to sue. They sue on the basis, of course, of clear, homespun English common law—the failure to provide a safe place of work and a safe system of work, part of UK common law since Wilsons and Clyde Coal v English in 1938—but they also rely on the Management of Health and Safety at Work Regulations and the Work at Height Regulations which originated from EU directives in what was known as “the six pack” in 1992.

Let me give the Committee one other example from my own experience. Six years ago, I represented the National Union of Mineworkers over the closure of the last deep mine pit in the United Kingdom at Kellingley. The dispute was over the compensation payable to the redundant miners. Of course, they were entitled to their redundancy pay and, indeed, an agreed enhancement. Their redundancy pay derived clearly from UK law. There is no EU input into redundancy payment, which has been part of our law since the Redundancy Payments Act 1965. However, they also claimed because they said—and were ultimately proved right—that there had been inadequate consultation with the union over the closure of that pit and the laying off of all those men. That derives from Section 188 of the Employment Rights Act, the provenance for which is EU law. Is the Minister going to tell us that that protection and that requirement for consultation before collective redundancy—the noble Lord, Lord Fox, referred to P&O Ferries, and that was the law that P&O accepted that it had broken in that case—is going to be repealed? Or perhaps it is simply to be a subject on which the Minister will not introduce any protective statutory instrument or further legislation but will simply sit on his hands and it will disappear on 31 December this year.

We are debating Amendment 1 at the moment, but Amendments 2, 17, 21, 23—which the noble Lord, Lord Fox, referred to—and 25, and Amendment 40 in the name of my noble friend Lord Collins, set out a raft of employment laws which those who tabled those amendments seek to protect. They are just a few of the employment laws which have a provenance from the EU. It might be recalled that, at Second Reading, I identified a whole raft of health and safety laws which fall into that category. There are others which have not so far been identified, one of which is, of course, the Section 188 to which I referred to a moment ago.

Those seeking to preserve specific rights, as the amendments this morning are seeking to do, are faced with a dilemma of trying to identify what rights need protection when faced with a blanket sunset clause which will remove the whole lot unless protection is given. As my noble friend Lady O’Grady and the noble Lord, Lord Wilson of Dinton, have intimated, it should be incumbent on the Government to identify what is proposed to be repealed and what the justification for it might be. I call on the Minister to do that in his speech and tell us what the Government are going to get rid of. The fact is that those who voted for Brexit, for good reasons, no doubt, surely did not vote for the removal of all these rights in the workplace or the uncertainty about whether those rights would subsist after 31 December 2023.

There is one final matter before I sit down, which is a point alluded to by my noble friend Lady O’Grady. The trade and co-operation agreement that was ratified by the United Kingdom in 2021 includes two articles, Article 387 and Article 399, which require the United Kingdom to preserve certain rights guaranteed by international treaties which it has ratified and to implement them. There is an enforcement mechanism if the United Kingdom does not do those things. I tell the Committee that the European Parliament and the European TUC are already urging the European Commission to initiate that enforcement mechanism by reason of this very Bill that we are discussing today. It does not add to the reputation of the United Kingdom that we should already be breaching a treaty that we ratified only two years ago.