Retained EU Law (Revocation and Reform) Bill

Baroness O'Grady of Upper Holloway Excerpts

Committee stage
Thursday 23rd February 2023 Lords Chamber

I ask the Minister, in the light of such uncertainty produced by the Bill for so many women, why will the Government not think again and set aside the Bill, or at the very least, remove the cloud hanging over maternity and parental rights?

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, the Minister is on record as saying:

“While some of these laws will be preserved, of course, many are outdated, some are unduly burdensome, and others are increasingly unsuited to the UK’s economic circumstances.”—[Official Report, 6/2/23; col. 988.]


Can the Minister tell us exactly which of the employment rights listed on the dashboard fall into the category of “outdated”, “burdensome”, or “unsuited to the UK”? Surely these are not health and safety matters such as paid holidays, rest breaks and safe limits on working time; regulations covering asbestos, construction, working at height, gas safety and the control of hazardous substances; or equality provisions such as equal rights for part-timers, parental and maternity leave, and equal pay for work of equal value.

Kwasi Kwarteng, the then Business Secretary, wrote to me last year, when I was TUC general secretary, to promise that no workers’ rights would be worsened as a result of the Bill. So if they are not deemed “burdensome”, why not exempt them from the Bill altogether? Millions of working people depend on these rights week by week. The CBI and IoD oppose the Bill because it will cause huge uncertainty and damage our reputation. The TUC and unions oppose the Bill because it causes huge uncertainty and anxiety for working people; this has real-world effects. Certainly, it would be sensible at least to remove the sunset date of 31 December 2023, which denies proper parliamentary scrutiny and accountability.

I have one other point: the RPC gave the Government’s impact assessment for the Bill a red rating—not fit for purpose. The strikes Bill impact assessment was also judged not fit for purpose and the Minister undertook to look at it again and to address its red-rated inadequacies. Will the Minister make that commitment for this Bill too? In particular, the impact assessment for this Bill suggested that there would be no negative impact on trade and investment, but no specific consideration was given to the EU–UK Trade and Cooperation Agreement level playing field clauses and the sanctions that breaches would attract, or indeed commitments that are enshrined in the Northern Ireland protocol. Can we see not the legal advice, which we understand that the Minister will not share, but the commentary, the analysis, and the assessment of that?

[Baroness Thornton (Lab)]

My Lords, I apologise for not having been involved in the Second Reading debate on this but I think it is worth noting that in the last couple of days the EHRC has issued a briefing note about its concerns about the Bill, particularly these amendments. I am here partly to read into the record some of the concerns that our Equality and Human Rights Commission has about the things that are contained in the Bill, including:

“The Bill covers legislation on limits on working time, the right to paid holiday, rights for temporary and agency workers, and parental leave. These are important legal protections for all UK workers which have specific impacts for people with certain protected characteristics under the Equality Act, such as sex and pregnancy and maternity”,


as my noble friends have already outlined. The EHRC also says:

“Any negative impacts on people sharing protected characteristics must be identified and mitigated by Government”


and that it is

“concerned at the potential impact of the Bill on workers with the protected characteristics of sex and pregnancy and maternity. This is because the workers’ rights at risk, such as maternity and equal pay, and parental leave, disproportionately affect women”,

as the Minister will be aware. It continues:

“There may also be negative economic impacts if the ability of women to participate in the labour market is eroded.”


The EHRC goes on to talk about the “legal uncertainty” that this will create within our labour market and our equalities field. So my question to the Minister is: how are the Government going to mitigate these risks?

--- Later in debate ---

[Baroness O'Grady of Upper Holloway (Lab)]

Does the noble Lord agree that it took trade unions years, representing cases, to win a definition of normal pay that included, when workers were normally working and were required to work overtime, that overtime? That money matters to thousands of workers, but if this Bill passes, all that case law, and all those years of hard work to win workers justice, will be swept away and we will have to start from scratch, as the noble Lord said. I hope he agrees that that would have a catastrophic impact on working families who are already struggling to manage.

[Lord Fox (LD)]

I thank the noble Baroness for her intervention. To be brutally honest, it was her I was thinking of when I made that reference, because I know how hard she worked on that issue in her former life. Of course I agree, and that is why we bring it up. This is not about reindeer farming; this is about people’s lives.

--- Later in debate ---

[Lord Callanan (Con)]

“Yes” is the answer to the noble Baroness’s question. All new regulations will be subject to a period of consultation. I have to say, with great respect, I would have a little more sympathy for the noble Baroness’s argument had any of these regulations been introduced into UK law in the first place with a period of consultation—but, of course, we all know they were not. Many of the people complaining now that these regulations are so valuable never said anything at the time about the process by which they were introduced. But I accept that is a difference of principle between us.

As I said, our high standards do not and never have depended on EU law. Ministers will have the power to preserve such retained EU law from the sunset where appropriate. Building on some of the earlier points made by the noble Baroness, Lady Humphreys, this includes Ministers in the devolved Governments. As such, it is the Government’s contention—I suspect it is one that will not draw much sympathy from the Opposition—that there is simply no need for any carve-outs for individual departments, specific policy areas or sectors, particularly when I have been able to reassure the Committee on the principles of maternity rights and employment law as a whole.

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, one reason we have such concerns about the timetable is that, as we have heard in exchanges today, there is no agreement on the evidence base we are working to. Part of solving that would be going back to the drawing board on the impact assessment, which, as we heard, was red rated and deemed not fit for purpose. Could the Minister explain at what point we will be looking again at that impact assessment and dealing with the criticisms of the one that received the red rating? What impact could that have on the timetable? If we could agree more and have dialogue on the evidence base, perhaps we might be able to make more progress.

[Lord Callanan (Con)]

I totally understand the point the noble Baroness is making. I have looked at this—indeed, I was the Minster responsible until very recently for the Regulatory Policy Committee, which does some fantastic work. But of course it is very difficult to produce an impact assessment for what is essentially an enabling framework Bill. I think what would be more relevant to the noble Baroness, and what she would be more interested in seeing, are the detailed impact assessments that will be produced on the particular regulations. If regulations are just carried on and essentially replaced, there will be no need to bring an impact assessment because there is no change. However, if change is proposed, of course the relevant departments will produce impact assessments for those particular regulations. I am sure the noble Baroness will have great enjoyment in reading those.

--- Later in debate ---

[The Earl of Clancarty (CB)]

My Lords, my name is on Amendment 2, and I support the noble Lord, Lord Fox.

The reaction in Committee to what the noble Lord, Lord Frost, said earlier about the options available shows the degree of trust in any particular legislation being retained. We feel forced into making specific representations on legislation because that trust does not exist, so there will be more testing by specifics.

The creative industries owe the noble Lord, Lord Clement-Jones, in particular, a debt of gratitude for identifying at Second Reading particular legislation which affects, among others, artists and other creative workers, including intellectual property rights. Worryingly, what is being discussed today, including Amendment 2, is just a sample of the relevant legislation, as the noble Lord, Lord Fox, said, and there will be much more that business campaign groups and other concerned parties and individuals have yet to identify as relevant to their own activities. Surely that is dangerous.

These days, the Government prefer not to talk about the EU, but when they do so it is usually in disparaging terms—although I for one live in hope that that will change. However, there is a sense in which we should forget Europe in terms of this legislation, and I say that as a remainer who would like at the very least for us to rejoin the single market as soon as possible, not least because the extent to which free movement across Europe is essential to the arts and creative industries has become abundantly clear. However, this is in practice UK legislation, and in very practical terms the statutory instruments which Amendment 2 refers to affect British workers. That this is domestic legislation is no better exemplified than by the fact that the two SIs which Amendment 2 would retain make express reference to our own workplace: to staff working in the House of Lords and the House of Commons.

To take the House of Lords as an example, as of February 2023, of the 670 employees on contract, currently, 20% are part-time and 11% are on fixed-term contracts, meaning that 31%—almost a third—of staff in the Lords are on contracts other than full time. Frankly, it is outrageous that the Government are considering removing, or risk removing, important protections for the parliamentary staff who work alongside us, let alone removing such protections for anyone else. More generally, however, removal of this legislation will affect many creative workers, as the noble Lord, Lord Fox, said. Some 32% of the creative industries workforce is self-employed, which is double the national average, although the House of Lords appears to be more closely in line with the creative industries as far as fixed-contract and part-time work is concerned.

The creative industries took a big hit with Covid and we remain grateful for the help the Government provided for freelancers, although many still slipped through the net. However, despite that and the current energy crisis, in my view, the longer term will see the further expansion of the gig economy and the creative freelance workforce. In part this is due to the inherent demands these growing industries make—that is an essential point—but for the creative workforce and indeed industry more widely, it is due increasingly to our diversity of preferred modes of working. Some of this social change can be laid at the door of the creative industries.

This is a reality which needs to be both acknowledged and supported, in which case no one should be penalised for choosing one manner of working over another or having to do so through the demands the work makes. All work and workers should be treated equally fairly, without the quantity of work done or the impermanence of a position affecting notions of quality or anything else. It needs to be added that the take-home pay of many creative workers and others working in the gig economy does not, as we know, necessarily reflect the success of those industries overall.

The overall point here is that this legislation is progress from which we should not be retreating but instead building upon, which is why it should be retained. However, if the Government really support the creative industries, they will have no hesitation in excluding this legislation from the sunset. Better still, they should scrap the Bill.

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, everybody in this House understands the real and clear evidence out there that women are much more likely to be in low-paid jobs, employed in part-time work and on insecure contracts, whether that is fixed-term, agency or zero hours. Therefore, we know that we have to pay special regard to the Bill’s impact on women and equality. The equality impact assessment for the Bill warns, precisely on this point, that

“the EU law concepts that will be removed by the Bill underpin substantive rights in equality law. While GB equalities legislation is extensive, there is a possibility that the removal of the principle of supremacy of EU law and the sunset of EU-derived legislation may lead to a lowering of protection against discrimination”.

So the risk is very clear, and I have to say that I have not been reassured so far by the Minister’s attempted reassurance on issues such as maternity rights. Many of us fought for those rights—we know exactly what came from EU-derived law and what came from case law, and the way they are entangled with UK law—and there is a risk of pulling the rug from beneath them. My concern is that, even if the intent is not to worsen women’s rights, there appears to be a lack of understanding and expertise that will ensure that they do not just slip off the agenda when the sunset clause kicks in. So I would like to hear precisely how this concern about the disproportionate impact on women of the enabling Bill will be addressed. We have heard that we cannot have a proper impact assessment because it is an enabling Bill—which in itself causes great concern. I would like to hear what measures can be taken to ensure that women do not, yet again, end up losing out.

[Baroness Altmann (Con)]

My Lords, across my whole career, I have worked with other women and admired the work of trade unions trying to help the employment protections for women in general, mothers with young children or women with other caring responsibilities, by helping them to keep working and to build their economic and financial resilience. This includes parental leave, the protection of pensions in TUPE and the other areas we discussed in the first group, but it also includes the worker protections for part-time workers, which have resulted in improved working conditions and protections for men, disabled workers and minority groups, not just for women. For those reasons, I wholly support Amendment 2.

Quite frankly, the fact that the regulations and laws which are the subject of the Bill derive from the EU seems to be a red herring. As my noble friend the Minister said, this is an enabling Bill, which will allow Ministers to retain, amend or revoke our laws and public safeguards. That these protections originated from the EU is just not the point: in reality, as my noble friend said, we have higher standards, so, had they not been introduced by the EU, the implication must be that we would have introduced them ourselves. In reality, my noble friend is saying that the fact that they were introduced as a result of EU measures, and were not objected to when they were introduced, is because Parliament itself would have chosen to have them. So we should not be here debating the fact that, because they originated in the EU, we have to tear them up or to assume that they are somehow bad. Vast swathes of long-standing and hard-won protections are under threat—