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

Lord Balfe Excerpts

Wednesday 6th February 2019 Lords Chamber

[Baroness Burt of Solihull (LD)]

I thank the Minister for his explanation. These four statutory instruments have been somewhat of a revelation to me. I was not aware that Northern Ireland has a different system of rules, although it comes under the same European legislation as the rest of the United Kingdom. I hope that the Minister and other colleagues will forgive me if some of the questions I am about to ask seem a little naive: I do not have the same level of expert advice, and hope that the Government and the Official Opposition will bear with me. I also did not get the TUC paper referred to by the noble Lord, Lord Monks.

Two of the statutory instruments obviously relate to Northern Ireland, and I was surprised to discover that legislation which presumably covers the same European Union rules differs. Why, under the same general legislative EU framework, does Northern Ireland go its own way, to a degree? In what way do the Northern Ireland regulations differ?

The regulations for mainland UK and Northern Ireland cover paternity and adoption pay, fair employment tribunals, industrial tribunals, shared parenting, working time, posted workers, small businesses and so on. I saw no reference to TUPE regulations in the Northern Ireland statutory instruments. I am sure that that is my omission, but do those elements operate differently? Surely TUPE exists in Northern Ireland as it does in the rest of the United Kingdom.

I also note that the statutory instruments amend primary as well as secondary legislation, so presumably the instruments cover areas where the primary legislation is amendable by secondary legislation. Can the Minister confirm that that is correct?

I have another question on the instruments relating to England, Wales and Scotland. Paragraph 12 of the main regulation relates to statutory paternity pay where a person has worked in the EEA. Can the Minister confirm that statutory paternity pay will not be affected by our exit from the European Union for fathers working in the rest of Europe?

Finally, I get twitchy when I read examples such as in part 1 of Schedule 1, paragraph 2, which states:

“In section 79(2) (entitlement to parental leave—supplemental) omit subsection (3)”


of the Employment Rights Act 1996. There are several such examples throughout the SIs. Can the Minister assure us that no existing rights are being omitted or weakened in any of the statutory instruments we are considering this afternoon?

In discussing the withdrawal Act—it seems a long time ago now—we sought assurances from the Government that employment rights would not be weakened post Brexit. Our fears were echoed by the noble Lord, Lord Monks. We do not know what will happen; indeed, one needs a crystal ball to predict what will happen next week, let alone after any possible Brexit. Will the Minister assure the House, as much as he can, that employment rights will not be diminished?

In conclusion, I hope that none of these instruments will ever need to apply, unless we commit the wilful act of self-destruction of leaving the European Union without a deal. The Minister alluded to that. Is he still feeling optimistic?

[Lord Balfe (Con)]

My Lords, I draw attention to my various interests in the register to do with trade unions. I am very pleased to follow the noble Lord, Lord Monks, a distinguished former general-secretary of both the TUC and the European TUC. Many of us in this House forget that the European TUC is a very powerful body that represents workers from all over Europe and has had a decisive impact on much legislation that has covered workers.

I have also been extremely pleased recently to see that the Government, on the road to Damascus, are now again talking to the unions. It must be two and a half years since union leaders last met a Prime Minister. When I was working as trade union adviser to David Cameron, one of my jobs was to ensure that that scenario never existed. I hope that the present Prime Minister will realise that a regular dialogue with the trade union movement is for the good of Britain, because it enables trade union leaders, who have a very good bird’s eye view of what is going on in Britain, to contribute to the national wealth.

We have spent most of today talking about things which we really hope will never matter—in other words, that we will not leave the EU without a deal and that therefore none of what we have dealt with today will come into force. I noticed that both of the main SIs state that they can be,

“deferred, revoked or amended”.

My first question is whether consideration has been given as to which one of those three is likely to come into force. I would like them never brought into action and revoked straightaway, but the word that worries me the most is “amended”. In other words, they would no longer be SIs if we leave without a deal but would be amended in some way to accommodate a deal.

My next point is on the enshrinement in law of workers’ rights in the side agreement that we had with the EU. When I met Gavin Barwell, the Prime Minister’s chief of staff, I specifically asked: “How strong is this agreement and how enforceable is it?”. He confirmed to me that it was not enforceable. When legislation comes to this House to deal with post Brexit when there is a deal on the table, a number of Members will be looking to write those agreements on workers’ rights into Bills, to make them fully enforceable.

I want to make one or two points on the documents in front of us. I will try not to copy what the noble Lord, Lord Monks, has said. However, there is concern about workers’ councils. They play a valuable role and we will be looking to the British industry part of workers’ councils to maintain a commitment to them—in other words, not to use the absence of Britain from the EU as a way of weakening the ability of workers from the British side of workers’ councils to continue to participate in them. We will be looking for the Transnational Information and Consultation of Employees Regulations to be kept fully in force.

What will happen if an external request is made for a new European workers’ council from a European country? I notice that companies that operate in Switzerland often include Switzerland within their scope and include Swiss worker representatives as EWC members. Switzerland is not in the EEA—that is one reason why I use this example—and the provisions do not appear to make provision for workers’ councils continuing to include the UK within their scope on a voluntary basis. I would like to know what the Minister sees as the future in that area.

On the updating rights, the Minister can enact legislation to keep UK law in line with EU law. I would like to think that we will do our best to do that. Has he had any thoughts on that?

I turn briefly to the other regulations. I agree completely with the noble Lord, Lord Monks, that we need a much clearer definition of what “TUPE-like” means. This looks like something, but is not quite the same. I would like to see an agreement that TUPE-like means that TUPE, as practised at the moment, will be the standard to which Ministers will try to hold any future statutory instrument or legislative developments.

I thank the Minister for bringing this to the House tonight. I look forward to his responses and promise him that when labour relations matters come up, I will continue to represent the 30% of paid-up trade union members who vote for the Conservative Party.

[Baroness Crawley (Lab)]

My Lords, I am grateful to the Minister for setting out these draft regulations. Like other noble Lords, I am concerned about any potential loss of updating rights.

Does the Minister agree that, both on the European works councils and on TUPE, these regulations remove powers currently enshrined in primary legislation, under which Ministers can enact legislation to keep UK law in line with EU law? Will removing those powers mean that it will be harder to keep workers’ rights up to the same standard as EU workers’ rights, as EU law develops?

May I underline the point made by the noble Lord, Lord Balfe, and my noble friend Lord Monks on the “TUPE-like” reference? TUPE has been a boon, particularly for women workers moving between jobs, especially when we see how women’s pensions are often a lot less than men’s pensions.