Retained EU Law (Revocation and Reform) Bill

Lord Hendy Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

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

My Lords, also in the interests of brevity, I will just say that there is real fear and concern that we will end up with a massive mishmash of legal confusion in this area. That concern is very real in the world of work, in particular in areas such as equality—not least in equal pay for work of equal value and protection for insecure workers, where so many advances have depended on EU-derived legislation and case law. Previous judgments will no longer be binding, and issues will have to go through the judicial system again. As Michael Ford KC wrote in the Financial Times:

“Workers and employers will be back at square one. The whole lengthy and expensive process of appeals will have to be repeated. Even the most enthusiastic lawyer views such a … task with dismay.”


Having to argue those key points again will be costly and cause delays. Frankly, that usually benefits those with the biggest wallets.

The Bill hands huge powers to, and puts enormous pressure on, the Court of Appeal and the Supreme Court, which have been instructed to depart from case law informed by EU law if they consider it right to do so. Of course, the chances are that there will be an avalanche of requests from lower courts or tribunals making references to higher courts about departing from retained EU case law. The result will be workers and employers spending more time in court—in a system that already has huge delays—in a desperate attempt to find out what the law now means.

[Lord Hendy (Lab)]

I will make a short point about Amendment 61A, tabled by my noble friend Lord Whitty. In the amendment, he seeks to exclude from the effect of Clause 3 employment rights and health and safety at work. At the end of Tuesday, I sought to demonstrate that health and safety at work was a protected area which could not be repealed or amended under the Bill because of the protection given by the trade and co-operation agreement, which my noble friend and the noble Lord, Lord Hannay, mentioned this evening. I will explain why it covers some but not all employment rights.

There are two ways in which it operates. The first is via Article 387, which requires that a party, including the UK,

“shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.”

Indeed, Article 387.4 requires that:

“The Parties shall continue to strive to increase their respective labour and social levels of protection”.


On Tuesday, I pointed out that labour and social levels of protection are defined by Article 386, which includes not only

“occupational health and safety standards”

but

“fundamental rights at work … fair working conditions and employment standards … information and consultation rights at company level; or … restructuring of undertakings.”

It is quite apparent that many of the EU laws on employment are protected by that definition.

The other way in which some employment rights are protected is by Article 399.5:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”


I will not reiterate the many ILO conventions which protect employment rights at work, but Members of the Committee may not be so familiar with the European Social Charter. I will not read the text of the relevant provisions, but I will just mention that Article 2 protects the right to just conditions of work; Article 3 protects the right to safe and healthy working conditions; Article 4 protects the right to a fair remuneration; Article 7 concerns the right of children and young persons to protection; and Article 8 concerns the right of employed women to protection. There are other provisions as well.

For these reasons, it appears to me that my noble friend Lord Whitty is right to seek protection for employment rights, or at least some employment rights, that are covered within those two ambits, as well as health and safety at work.