Draft Employment Rights (Amendment) (EU Exit) Regulations 2019 Draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 Draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018 Draft Employment Rights (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2018

Angela Eagle Excerpts

Wednesday 13th February 2019 General Committees

[Kelly Tolhurst]

If the hon. Gentleman allows me to make some progress, I will come to that point. We should aim not to sensationalise the issue, but to provide clear answers to the public. It is our responsibility to be the guide during this unprecedented time.

The Committee will be aware of the programme of reforms that the Government are already implementing to strengthen workers’ rights and we are delivering on our commitments through the “Good Work Plan”. We do not need to be in the EU to have strong workers’ rights or to enhance them in the future. Indeed, we will continue to deliver the good work reforms after the UK has left the EU.

Far from being content with EU minimum standards, the UK has gone beyond them in a number of areas. Our maternity entitlements are nearly three times greater than the EU standard. In the UK, we offer 52 weeks of maternity leave, of which 39 weeks are with pay; the EU requires only 14 weeks of paid leave. We give fathers and partners the statutory right to paternity leave and pay—an entitlement that the EU is only now starting to consider. We allow eligible parents to share paid leave and thus caring responsibilities in the first year following birth or adoption; the EU does not provide for that right. We have given all employees with 26 weeks’ qualifying service a statutory right to request flexible working; EU law allows workers to make a request only if they are returning from parental leave. One of the EU’s own agencies, Eurofound, ranks the UK as the second best country in the EU for workplace well- being, behind only Sweden, and the best for workplace performance.

In our future outside the EU, the political declaration on our future relationship states that we will build on the withdrawal agreement commitment not to reduce our shared standards or regress from existing EU legislation. As my right hon. Friend the Prime Minister said in the House yesterday, we are prepared to commit to asking Parliament whether it wishes to follow suit whenever the EU changes its employment standards. I hope that that provides assurance to the Committee that the Government are absolutely committed to protecting and enhancing workers’ rights.

The statutory instruments are an important and necessary part of the work to protect rights in the event that we leave the EU without a deal. Of course I hope that the regulations will not need to come into effect, and that an agreement can be reached with the EU so they can be revoked.

[Ms Angela Eagle (Wallasey) (Lab)]

Will the Minister explain why the Government initially thought that the regulations should be subject to the negative procedure and not debated at all? We are obviously pleased that the Government changed their mind when the European Statutory Instruments Committee asked for the change.

[Kelly Tolhurst]

The statutory instruments that were laid subject to the negative procedure, which was changed by that Committee, relate particularly to Northern Ireland. They were upgraded to be debated, so we have the opportunity to debate all four sets of regulations in Committee today.

Although I hope that the regulations will not need to come into effect, because I hope that we can reach an agreement, in the event of no deal it will be vital that they are enacted. Failure to pass these largely technical regulations would result in uncertainty about workers’ rights and employers’ obligations, which could lead to disruption for business and citizens and an increased risk of litigation, which is in no one’s interest.

Against that background, I will explain one set of provisions about which hon. Members may have concerns. The Employment Rights (Amendment) (EU Exit) Regulations 2019 make changes to the rules on European works councils. Businesses and trade unions in the UK value the opportunity for employee engagement and consultation that the councils provide, and the Government recognise and encourage those benefits. However, withdrawing from the EU without a deal will mean that the UK is no longer covered by EU rules on European works councils.

In that scenario, it would be for the EU to give UK workers the right to be represented on the councils. It is an unavoidable and unfortunate truth that there is no way for the UK unilaterally to ensure that workers in this country retain that right without a deal. There is also no way to replicate the European works council system only in the UK, as their purpose is to enable cross-border engagement. That requires the same rules in all countries, which requires a withdrawal agreement.

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[Kelly Tolhurst]

I assure the hon. Gentleman that we have been very clear that we will not roll back workers’ rights. In fact, we have made an express commitment to go further. As I outlined, we already go further than Europe in many ways. We have been feeding into the development of EU thinking on some of these policies, as some of the work we have been doing in the UK is particularly good. We are determined to continue on our path. Our ambition is that the UK continues to be a great place to work, with those protections continuing to be afforded to the people employed in this country.

Our domestic regime for employee engagement and consultation will remain in place, and we will encourage businesses to continue to allow UK workers to be represented on a voluntary basis in European works councils. We are retaining as many of the existing rules as we can to enable that. All existing protections for workers and for their representatives on European works councils—even those there voluntarily—will be maintained. Approving the draft regulations is the only way to ensure that workers involved in European works councils are protected if there is no deal. They deliver on our commitments.

Another area I am aware that Members may be concerned about is the changes being made to the TUPE regulations. In a dynamic economy such as the UK’s, there will inevitably be takeovers and mergers and contracts changing hands, which is good for the prosperity of our country; the best companies outdo the worst. We recognise that that must be combined with strong protection for the workers in those companies, for whom a change of employer may be a stressful and difficult experience. TUPE regulations are central to protecting workers from suffering as a result of being transferred.

The draft regulations are an important part of EU-derived employment law, which we have committed to retain. In the UK, we have gone further than required under EU laws and we have extended these important protections to other groups of workers. Not only will we retain the elements from the EU, but we commit to retaining the gold-plating. Only by making the changes contained in the draft Employment Rights (Amendment) (EU Exit) (No. 2) Regulations can we make sure that workers remain entitled to these protections. The changes are necessary to ensure that the Government retain our current powers to extend the protection provided by TUPE to other groups of workers. These powers have been used to protect workers where there is a change of service provider that is not also a business transfer—a situation that would not be covered by EU rules. That crucial gap can include situations where a business outsources or contracts out a service. The changes are technical, but it is important that I set Members’ minds at ease.

The current powers are defined with reference to the EU directive, which applies to the UK as a member state. When the UK is no longer a member state, if there is no deal the reference will no longer make sense, so the reference must be changed so that it does not rely on EU law. Without that change, the Government could not use the power or use this tool for protecting workers in future.

I have highlighted these areas as the other changes in the SIs are purely technical, made to reflect the fact that the UK will no longer be a member of the EU. I assure the Committee that the amendments made through these SIs deliver on our workers’ rights commitments, thus providing clarity to employers, workers and businesses, and confidence that the Government are prepared for a no-deal scenario.

[Ms Eagle]

Can the Minister explain to the Committee why the Government felt it necessary to make some of these changes retrospective and bring them into being before we have left the European Union, even though these SIs are meant to be a series of so-called no-deal SIs?

[Kelly Tolhurst]

In the event of a deal situation, the SIs that have been laid and passed can be revoked, referred, or brought to a following end-date, so there is a range of options on the table in a deal situation. We have been passing the no-deal SIs, particularly those before the Committee today, to make sure that we are ready if we leave the European Union on 29 March without a deal. It is imperative that we have regulations in place to ensure that we have a functioning statute book and are able to operate in a correct way.

[Ms Eagle]

I thank the Minister for giving way again. Some of the provisions in these statutory instruments actually came into force on 1 December 2018. Why is that?

[Kelly Tolhurst]

I do not know the particular SIs that the hon. Lady is referring to, so I cannot comment on them. All I am commenting on are the ones that I have in front of me today.

[Ms Eagle]

Some provisions in the regulations that are scheduled to come into force came into force at the beginning of last December. Will the Minister explain why it was felt necessary to bring them into force well ahead of our leaving the European Union and then apply them retrospectively, which is not a good principle of law?

[Kelly Tolhurst]

As I have already outlined to the hon. Lady, the SIs that she is–

[Ms Eagle]

The notes are coming. [Laughter.]

[Kelly Tolhurst]

That may be, but the measures that she is referring to have not been highlighted. I am not aware of the ones that the hon. Lady is referring to. I am referring to the SI that is in front of me today.

[Ms Eagle]

If the Minister cannot give us the explanation I seek now, will she undertake to provide it in writing to all members of the Committee?

[Kelly Tolhurst]

I will happily write to the Committee if the hon. Lady outlines to me the SIs that became active on 1 December 2018, so that I can give her and the rest of the Committee further clarification on that.

It would be unacceptable not to provide clarity to businesses and workers, and I encourage the Committee to approve the instruments. I commend them to the Committee.

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[Chris Stephens]

It is a pleasure to see you in the Chair, Mr Evans. We need to start from the moment the Government tried to sneak these measures through using the negative procedure when they tabled the regulations on 31 October 2018. I am astonished that that great bastion of democracy, the House of Lords, was the place to correct the Government’s disregard. If it were not for the concerns put by the Trades Union Congress, that is exactly what the Government would have done.

[Ms Eagle]

It is true that the House of Lords spotted that the regulations would better fit the affirmative procedure but, to cheer up the hon. Gentleman, so did the European Statutory Instruments Committee of the House of Commons, of which I am a member, when we had a look at the regulations. We also suggested to the Government that the regulations are not minor and should certainly be subject to fuller debate.

[Chris Stephens]

I am grateful for that clarification. I was previously a member of that Committee—I thought the Whip was punishing me for something—and that shows the Committee system plays an important role. The Minister needs to answer why these statutory instruments have different dates for different parts. For instance, 1 December has been mentioned; some mention exit day and some mention other dates. The Minister should clarify that. If there is no clarity on that matter, I do not see how the Committee can agree to these statutory instruments.

Although the Government have said that they want to keep workers’ rights, the clear concern is that what is happening in reality is a loss of guaranteed upgrades. A classic example of that, which I mentioned in my question to the Minister, is the regulations currently being negotiated between the European Parliament and the European Commission in respect of workers in the gig economy and working parents.

It is clear that, if there is no deal, UK workers will no longer be entitled to request the establishment of a European works council. That is important in many areas of the country. In the bus sector, for example, companies such as Arriva have workers across the European Union and in the UK. Arriva ran services in the west of Scotland before it pulled out, and its workers had to be offered jobs elsewhere in the European Union to continue their work.

The fact that UK workers will no longer have the opportunity to request the establishment of a European works council, in order to participate in discussions about company-wide issues with European colleagues, is very serious. Protections are clearly being weakened, because European law and the courts provide a protective backstop—I believe that phrase is in vogue—against EU workers’ rights law being weakened by future UK Governments.

That brings us to the issue of trust. The Prime Minister’s statement yesterday, and her answer to my question about what happens here if the European Union strengthens workers’ rights, mirrors what she said in her letter to the Leader of the Opposition: that there would be a vote in Parliament, and that the Government would not advocate matching those terms.

I asked that question of the Minister today, and I feel she did not guarantee that the Government would match those terms. Somehow it would be put to a vote, and workers across the UK would have to trust the Conservative party to enhance their workers’ rights— I do not think so.

I am sure the hon. Member for Wallasey will agree that those of us who were involved with the anti-trade union Act saw the real face of conservatism when it comes to workers’ rights and protections, and we remember the statements made in relation to workers’ rights by the great advocates of the leave campaign. The Secretary of State for International Trade said:

“It is too difficult to hire and fire”

people in the United Kingdom.

The reality is that these statutory instruments are badly drafted and offer no scope to keep United Kingdom law in line with EU law. As such, I will be voting against them.

[Ms Eagle]

It is a joy to see you in the Chair, Mr Evans. I begin by thanking the Minister for agreeing with the recommendation of both the House of Lords and the European Statutory Instruments Committee, which considered this collection of eight different measures and asked the Government to think again about using the negative procedure. If the Government had their way, there would have been no debate whatsoever about any of these important matters.

The Minister told the Committee that these are just technical amendments, that there is nothing to see here and that we should all be happy not to be bothered by a series of tiny law changes. However, those of us who have been in the House a long time and know all about the general approach of the Conservative party to workers’ rights legislation want to check it out anyway. A little later, I will outline some things that it would be helpful for the Minister to clarify in her response.

Let us look at what these two sets of statutory instruments do. The first is for Northern Ireland, which of course does not have a functioning Executive at the moment, and therefore legislation is effectively being made for it without its direct say-so. The second set applies to the rest of the country: England, Wales and Scotland.

The European Statutory Instruments Committee noted that the regulations amend four employment Acts to remove the power of the Secretary of State to make secondary legislation implementing EU employment directives. That is good, one might think, but that is four employment Acts changed by this collection of legislation. The Committee also felt there is a policy vacuum in what will replace the powers being taken away.

Section 79(3) of the Employment Rights Act 1996 is about the parental leave framework, and it will be repealed. Section 19(4) of the Employment Relations Act 1999 is about part-time work, and that will be repealed. Section 45(4) of the Employment Act 2002 is about conditions of employment, framework agreements on fixed-term work and the application of terms and conditions of employment and matters that arise because of the UK’s obligations under that particular EU directive. That will be repealed. Section 42(5) of the Employment Relations Act 2004, which has provisions about information and consultation, will be repealed.

The Government could have done other things. They could have tweaked rather than repealed all those things. Why have they decided to repeal? Why have they decided to tweak in other ways, such as by saying “TUPE-like”, rather than just cutting and pasting existing requirements and protections into UK law? I am alarmed that the Government felt they could bring forward this legislation without the Minister coming here to give us a lot more information about the Government’s approach.

It is about not only putting the same rights into UK law, but saying a bit about the loss of updating rights for the future. What, for example, is the Government’s intention, as the hon. Member for Glasgow South West has noted, on shadowing future rights that the EU may decide to grant its citizens, particularly in the gig economy? We know from experience that this Government have done little in the nearly nine years they have been in existence to aid and assist those who work in the gig economy. That has been left to unions such as the GMB, which has pursued Hermes through the courts to get those who work there the employment rights they should have been granted at the outset.

We know that other unions are pursuing employers such as Pimlico Plumbers and various other non-gig employers that are attempting to say that they do not have anyone working directly for them. Somehow all those people are self-employed and therefore have to pay for their own pensions and holiday pay. They do not get any sick pay or any other access to the basic protections we would expect every worker in the UK to get as a matter of common decency. Again, the Government have stood by and done absolutely nothing to protect those rights. They have made clucking noises about it and released the odd press release about how they are very concerned, but they have not done anything to make those rights accessible and available.

In fact, the coalition Government introduced employment tribunal fees, which effectively made it impossible for those with issues to enforce the rights they thought they had under UK law. They effectively dismantled what was left of the employment tribunal system by starving it of resources, so waiting lists were massively long and the only people who could really afford to get their statutory rights enforced at all were trade unions members who could afford to wait for a very long time and those who could risk their own money simply to try to get their basic rights enforced in the UK.

Of course, the Government also introduced the Beecroft report, which basically said that all maternity rights, and most employment rights, are a burden on business and ought to be abolished, and that everyone should fend for themselves.

It is very hard, looking at these transitions of EU regulations into the UK statute book, to take the reassurance of anyone from a Government with such a record that we can rely on the blandishments they might issue on the Floor of the House. We want to see proper law, proper debates and proper employment rights. We also wish to see an enhanced capacity for those organisations to allow workers to access their rights, thereby making those rights a reality.

So we come again to the Government’s record in that respect. The Trade Union Act 2016 made it virtually impossible for trade unions to operate without being caused enormous organisational problems and expense, which is a particularly vindictive approach to organisations that were created to ensure that workers can access their rights.

Many Conservative Members have said that, somehow, there will be freedom when we leave the European Union, but I could be forgiven for thinking that that will inaugurate a race to the bottom on rights. There will be competition in how exploitative we can be to those who work in what is already—let me put it this way—a very flexible economy, in which many people now struggle even to achieve basic pay, conditions, pension entitlement, sick pay, holiday pay and the rest of it.

We will look at the colour of the legislation, but I note that the Minister initially tried to get these statutory instruments through without even having a debate. Labour Members continue to look very closely, with a great deal of scepticism, at what is actually happening here, and whether there will be another attempt further to ratchet down the rights that people enjoy in our labour market.

[Mr John Baron (Basildon and Billericay) (Con)]

I gently say that those of us on the Government Benches have listened to these allegations that we all have it in for workers’ rights, but nothing could be further from the truth. We are actually very proud of our track record on workers’ rights, and we stand by it. Although we may be silently listening to this long line of allegations, it does not mean that those allegations are true. We can stand proudly on our track record. I thought I would put that on the record, because otherwise a person listening in from outside this place might go away with the wrong impression. At the end of the day, actions speak louder than words.

[Ms Eagle]

I am glad to have provoked the hon. Gentleman to get to his feet and make that fairly fantastical claim, when 60% of people in poverty are actually in work, and when we have seen a huge increase in the number of people on zero-hours contracts, or on contracts so flexible that they cannot put food on the table at the end of the week.

[Chris Stephens]

Does the hon. Lady agree that insecure work has exploded in the past nine years and that the reason we are so suspicious is that those who advocate leaving the European Union kept using the deregulation of workers’ rights as a vehicle to enhance their cause?

[Ms Eagle]

Absolutely. We all remember the horror with which the Thatcherites perceived the appearance of Monsieur Delors at the Trades Union Congress, when he actually said that there was a social justice aspect to the European Union and that, of course, if there is a free market in the EU, there also has to be cross-border workers’ rights. Anyone who looks at the record will know exactly what to expect from the deregulators who form the core of the Brextremist Members of the Government party. They are positively salivating at the chance to cut further people’s entitlements in the labour market. They have always hated the idea that there was a floor below which they could not take workers’ rights, even when they were in government.

[Mr Baron]

Will the hon. Lady give way?

[Ms Eagle]

I am glad to have provoked the hon. Gentleman again.

[Mr Baron]

The hon. Lady talks about social rights, yet she tends to turn a blind eye to the fact that within the EU—certainly on the continent—unemployment is nearly twice the level that it is here, and youth employment in certain countries runs up to 50% and above, which is an absolute disgrace. That is not social justice. There has to be an element of balance in the hon. Lady’s remarks if she is comparing our track record with that of the EU on the continent.

[Ms Eagle]

The hon. Gentleman makes an interesting comment. He looks at countries such as Spain, which has had a particularly difficult time with youth employment, and southern countries, but does not mention Germany or Sweden or any of the other places—[Interruption.] Let me finish the sentence. He does not remember any of the other places where there is a much less exploitative approach to skills, training, work and opportunities, and where they manage to create a much more productive economy, with a much happier workforce, which does not feel that it is being exploited.

[Mr Baron]

Will the hon. Lady give way?

[Ms Eagle]

Once more. Perhaps the hon. Gentleman should make his own speech.

[Mr Baron]

I am afraid the hon. Lady was being selective again. I quoted the EU average unemployment rate, which includes Germany and France and the northern countries. Even taking them into account, the EU unemployment rate is twice the level of that in this country. When the hon. Lady talks of productivity, she has got to be careful. If we are employing a greater share of the workforce, productivity will go down. Halving the unemployment rate is often done among low-skilled workers.

[The Chair]

Order. Before the hon. Lady responds, I would just say that the discussion is going a bit wide of the mark. We could turn this into a general debate, but that is not what we are here for. If we could focus on the statutory instruments, that would be really useful.

[Ms Eagle]

Thank you, Mr Evans, and I am more than happy to abide by the obvious correctness of your ruling. I will merely say in passing that the issue is about taking away workers’ employment rights and making them harder to access and easier to exploit, which suggests that the hon. Member for Basildon and Billericay takes a very different view from Labour Members of what represents a good productive workforce. A proper look at the evidence indicates as much.

[Rushanara Ali]

Does my hon. Friend agree that the hon. Member for Basildon and Billericay and a number of his colleagues seem to act in an evidence-free zone, even when the facts speak for themselves regarding the Government’s legislative changes to employment rights and reducing people’s rights? They opposed the national minimum wage when Labour introduced it and a whole series of improved labour standards regulations. Just because he says it, albeit in a well-mannered way, does not make it true. He should face up to the facts, which are that his Government have undermined labour standards. This is another attempt at a race to the bottom and labour market exploitation.

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[Ms Eagle]

Mr Evans, you know me very well and you know that I am never tempted at all to get away from being in order, which I take extremely seriously.

I have a couple of other points. We have to remember that for slightly more than 40 years the UK, as a member of the European Union, has seen progress in and directives on employment law, as well as protections for a range of rights, including health and safety, equality, equal treatment and anti-discrimination. Those protections have been considered a floor below which no Government of this country have been able to go, despite the wishes of certain current Government Members.

The Minister asks us to trust her—and trust the Prime Minister’s warm words but complete lack of action—that the Government do not wish to go below that floor, yet many of the Brextremists in the Conservative party have openly indicated otherwise. The Beecroft report would have crashed through the floor into the basement and further down. We know about the treatment of trade unions and organisations whose raison d’être is to protect workers. The lack of legislation or progress on any new forms of employment is simply another indication that, at the very least, the Government do not prioritise this area, but I suspect that the situation is worse than that.

If we are to agree to instruments such as the draft regulations, we will need much better suggestions from the Minister than, “Trust me.” We want much more evidence that there will be no loss to updating rights and that, as the TUC suggests, further rights agreed by the European Union will be more than matched in this country. We also need to know much more—I hope the Minister will cover this in her reply—about why it was thought acceptable for some pieces of legislation to be debated retrospectively after coming into being.

I hope that the Minister’s reply will give us some satisfaction that we can trust in, so that we can move forward. However, I have to say that I think it quite right for the Opposition to vote against the draft regulations until we see much more evidence that the Government will deliver what they say they want to deliver, and that they will act. To date, they have simply talked.