Brexit: Protection for Workers

Debate between Lord Monks and Lord Henley

Thursday 7th March 2019 Lords Chamber

[Lord Henley]

My noble friend has made a number of points very well, particularly the fact that not all trade unionists vote Labour. He also referred to remarks made by Frances O’Grady, the general secretary of the TUC. I think Frances O’Grady is absolutely wonderful; it is just that we do not necessarily always agree on every matter. She took rather a negative approach to my right honourable friend’s announcement. I assure my noble friend that a document will be produced by the Government every six months after consultation and it will refer to any changes made in the EU. We might want to consider whether we wish to follow those changes, do something better or reject them for whatever reason. My noble friend referred to how they would be examined by another place. I am sure this House will find ways of examining them, just as another place will.

[Lord Monks (Lab)]

My Lords, Frances O’Grady certainly does not need any defence from me. She very much reflected the trade union mission in life, which is always to seek more—one word: more. Some business schools could learn from that mission statement. This is an astonishing change from the Government. We have been faced with a stream of anti-union and anti-worker legislation from them and their predecessor, and I can now see a change. It is not a huge change, and the motives for it are extremely murky in terms of next week’s vote and so on, but I ask the Minister to confirm two things. First, how does he see the role of trade unions going forward? Will there be an institution in which they will be involved to make sure that everything announced in the other place yesterday happens? Secondly, I would like him to repeat—I shall savour the moment—that the Government have no intention of changing the working time directive.

[Lord Henley]

My Lords, I imagine that Frances O’Grady would not want to be defended by me. I merely said that I did not agree with her on certain matters but that I thought she was wonderful in many other respects. The noble Lord said that he always wanted more. Lots of people always want more but it is important to get the right balance so that, as my right honourable friend made clear, we protect the rights of those in work, we do not impose excessive burdens on employers and we create a situation in which it is easy for those who are not in work to find work because work is available and employers want to employ people. That is something that unions should always remember. Although they are assiduous in looking after those in work, they should remember those who are not in work, and we want to create the right environment for them.

The noble Lord then asked whether there would be an institution involving trade unions. I cannot commit to creating any institutions; nor do I think it necessary to do so. What is important is that my right honourable friend, or whoever holds that office or is in government, has an open-door policy whereby they can continue to consult, talk to and have a dialogue with trade unions and all others who have an interest in the matters we are talking about.

Finally, just because the noble Lord wanted to hear me say it, I was asked to make it clear that we have no intention of getting rid of or watering down—I cannot remember the precise words he used—the working time directive. I can give him that assurance.

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

Debate between Lord Monks and Lord Henley

Wednesday 6th February 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, I hope I shall speak also to the other three sets of employment rights regulations before the House on the Order Paper. These SIs are part of a package of measures that the Government have promised to introduce to make sure we are prepared in the event that we leave the EU without a deal. It is important to remember throughout this debate that these changes will not be needed if there is a deal. The SIs in front of us make amendments to EU-derived employment law in both Great Britain and Northern Ireland.

As noble Lords know, new directives agreed in the EU are transposed into UK law. The act of the UK leaving the EU therefore does not remove these rights, as they are already in UK law. In passing the European Union (Withdrawal) Act, Parliament gave the Government the ability to ensure that necessary changes can be made to keep the statute book in proper working order. These statutory instruments make only minor changes to language to ensure that existing regulations reflect that the UK would no longer be a member of the EU. These changes are necessary to ensure that the statute book is accurate and clear. It is important that businesses, employees and citizens have clarity on their rights and responsibilities.

We are not making any changes to employment rights or employment policy through these regulations. The Prime Minister, my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy, and many other colleagues have been clear that there will be no rollback of workers’ rights when we leave the EU. I wish to highlight that these statutory instruments would make some changes to the regulations for European works councils. This would be an unavoidable impact of the UK leaving the EU without a deal. I can explain these changes in more detail later.

Looking to the future, the political declaration on our future relationship with the EU states that we will build on the withdrawal agreement commitment not to reduce our shared standards—a commitment not to regress from existing EU legislation. I will now go into more detail on the amendments made by the statutory instruments. The Employment Rights (Amendment) (EU Exit) Regulations and the Northern Ireland equivalent regulations repeal four powers that the Government can use to make secondary legislation. These powers relate to parental leave, part-time work, fixed-term work and information and consulting rights. The powers that are repealed relate only to obligations that the Government would be under from EU directives. As the Government would not be under these obligations if the UK left without a deal, these powers would be redundant. We would not be able to use them even if they remained. For clarity and legal certainty, we are seeking to remove these powers. Removing them in no way changes the rights that workers enjoy, nor the Government’s ability to protect workers in the UK in future.

The Transnational Information and Consultation of Employees Regulations 1999 are also amended to reflect the UK’s departure from the EU. Withdrawing from the EU will mean that the UK is no longer included in the EU rules on European works councils, which is why changes are required to the legislative framework set out in those TICE regulations. Provisions relating to existing EWCs—which can continue to operate in a no-deal scenario—are maintained. These include the protections for workers and their representatives on EWCs.

I move on to the next pair of regulations—the Employment Rights (Amendment) (EU Exit) (No.2) Regulations and their Northern Ireland equivalent. These are listed first on the Order Paper, despite their numbering. The amendments made through these regulations amend the text of existing Acts to reflect the UK’s departure from the EU. None of these changes affects the rights workers enjoy or changes employment policy.

The changes that may elicit the greatest interest across the House are those made to Section 38 of the Employment Relations Act 1999 and its equivalent in Northern Ireland. These relate to TUPE protections. The SIs amend the wording of the existing legislation to maintain the current scope of a power currently derived from EU directive obligations. This power has been relied on to make secondary legislation to cover situations where workers are not covered by TUPE regulations. The revised clause still retains the breadth of the existing powers for the Government to amend TUPE regulations to protect the rights of workers. The changes also protect the regulations that have previously been made under this power. These amendments do not change the rights to which workers are entitled.

There is one further point I wish to bring to the House’s attention. Of course, I hope that these regulations will not need to come into effect. I hope agreement can be reached with the EU and these regulations can be revoked. However, in the event that there is no agreement—no deal—it is vital that these regulations are enacted. Failure to pass these largely technical regulations would mean uncertainty over both workers’ rights and employers’ obligations. This could lead to disruption for businesses and citizens, and an increased risk of litigation. This is in no one’s interest. It would be unacceptable not to provide this clarity to businesses and I hope noble Lords will accept that the Government are delivering on our workers’ rights commitment and that these SIs can therefore be approved. I commend them to the House and beg to move.

[Lord Monks (Lab)]

My Lords, it is pretty obvious that these regulations were drafted—as was necessary—before the conclusion of the current talks that the Prime Minister very belatedly initiated with the TUC and others about employment rights post Brexit. I understand that talks with the Business Secretary are still going on. I hope that at the back of the Minister’s mind is the thought that these regulations might well be altered in the light of any progress made in these talks. In effect, the TUC seeks a binding guarantee that existing employment rights will not just be maintained but will not fall below any levels of protection developed in the rest of the European Union and its single market.

There is a lot going on in the European Union at the moment on precarious employment, the gig economy, self-employment and protections for migrant workers. The key point in these negotiations with the Business Secretary is whether there can be any chance of a meeting of minds in these areas. So far, the Prime Minister has said to the union negotiators, “Trust me to make sure we will do the right thing”. “Trust me” is not quite good enough, given the transitory nature of being Prime Minister or party leader in this country. Binding guarantees are rather better than good intentions in this area.

The backcloth to these regulations has been drawn to my attention by the TUC. It has circulated a brief to Members of this House, which I hope noble Lords have had a chance to read. The first point is a procedural one about consultation. I echo previous debates in the House today by asking: who has been consulted on the regulations?

I turn first to the regulation dealing with the European works councils. It is worth reminding Members of this House that there are 850 or so EWCs and UK workers are represented on 500 of them. About 10 million European workers in total are covered by European works councils. Although their performance varies, as one would expect, on the whole they have been very successful in holding companies to account on their future plans and strategies. This is an important dimension in a world where pressures from financial markets on companies not to consult, inform or discuss their plans are very powerful.

We welcome the Government’s commitment to maintaining British participation in existing EWCs, but this commitment does not extend—at least as yet—to including new ones or to absorbing into UK law any changes in EWC arrangements that come into force over the next period. No new EWCs will be required to be set up under UK law after Brexit. We are worried that—at least in some cases—UK workers might lose their seats on the European works councils and therefore put British jobs at much greater risk than those of our neighbours across the channel and the North Sea. In other cases, I think there would be voluntary agreement. There are specific measures on the rights of UK worker representatives, such as paid time off to attend meetings. I note that these will be maintained after Brexit in relation to EWCs, but not necessarily to new EWCs that have a British component.

If there is no deal, most of these regulations are designed to come into force on Brexit day. What is the timetable should a withdrawal agreement be concluded? In our view, they should not come into force during a transition or implementation—or indeed a backstop—period.

I turn to the 2018 family of regulations. These are centred primarily on TUPE—the transfer of undertakings legislation—which has been valuable in handling transfers of staff due to privatisations in particular. They came in during the 1980s, under the Conservative Government at that time. The TUC is concerned that the regulations in this area lack a clear definition of what “TUPE-like protection” actually means. This is the phrase that has been adopted. I have not come across this kind of legal term before. “TUPE-like” seems to lack precision, as least to my layman eyes. Unless someone can explain the contrary to me, I think a clearer definition is very much needed.

The regulations do not extend TUPE-like protection and provisions to employee representatives, only to employees. Under the TUPE regulations, employee representatives have certain rights to information and consultation, and they should be maintained in whatever the future holds for us in this area.

Next, can we have an assurance that the regulations will not be brought into effect in any transitional or backstop period—that we would stick with the status quo? The powers under Section 13 of the withdrawal Act would hinder the UK’s ability to keep up with changes in EU law during any transition or backstop period and in the event of no deal. We want to avoid workers in the UK during such a period not having the same rights and protections as workers in other European countries. Protection during a transitional or backstop period is very important.

Taylor Review

Debate between Lord Monks and Lord Henley

Wednesday 7th February 2018 Lords Chamber

[Lord Henley]

My Lords, the noble Lord seems to think that we need to look only at dependent contractor status but the whole question of the boundaries between employed status and being self-employed also needs to be looked at. That is part of the consultation and I look forward to hearing his comments on that in due course as part of the consultation. Thinking back to the Employment Rights Act 1996—I do not remember its passage, though it is not that long ago—it is very likely that inclarities, if I may call them that, will emerge as a result of the consultation and will need to be looked at, as has happened since 1996. For that reason we are consulting—just to keep the noble Lord busy, there are three other consultations as well, where we would again be grateful for his comments—and it is quite likely that we will need to legislate as a result. As to the likely timescale for bringing forward primary legislation, I am afraid that I cannot give any assurances to the noble Lord. He will be aware that both Houses are rather busy with quite a lot of legislation at the moment.

[Lord Monks (Lab)]

My Lords, we are not short of consultations in this area; Taylor himself carried out a very extensive consultative exercise which the Minister referred to in his opening Statement. It looks to many people as if this exercise is being kicked down the road, with yet more consultation before the Government act. Some modest measures have been announced today—I noticed that the general secretary of the TUC said that a “baby step” had been taken. However, this is not the ambitious approach that the Prime Minister originally set out regarding the insecure labour market which affects so many in Britain today. Many young people are struggling to get secure contracts, and many people who work for agencies feel that their job security is at risk. Many mothers in particular, but also parents generally, cannot plan their childcare arrangements. We recently read about the case of a man who died because he did not want to take up a doctor’s appointment because he would be fined. I am not saying that that is typical but there are such cases. For too many people out there the world of work is nasty, brutish and, occasionally, all too short. When will the Government seize the nettle and move forward in an ambitious way, as we were led to believe would happen when the Prime Minister originally made a Statement on this matter?

[Lord Henley]

Again, my Lords, I am sorry that the noble Lord takes this rather negative view of what has emerged. Regarding the government response, Matthew Taylor himself said:

“There is much more to be done to make good work for all a realistic goal, but the Government response to my review is substantive and comprehensive. It will make a difference to the lives of the most vulnerable workers and that is what matters”.


We are in a position where employment is at an all-time high and unemployment is at its lowest level for some 40 years. Whatever we do, we do not want to damage, but we want to make sure that we make the right changes at the right time and in the right way. That is why there will be further consultation on employment status and on the other matters that I talked about—agency workers, enforcement of employment law and transparency for employees. Let us get that right and then legislate where appropriate.