PARLIAMENTARY DEBATE
Leaving the EU: Protection for Workers - 6 March 2019 (Commons/Commons Chamber)
Debate Detail
The United Kingdom and this Parliament have a proud record of improving the rights of working men and women: from Shaftesbury’s Factories Acts to William Hague’s Disability Discrimination Act 1995; and from the minimum wage, introduced by a Labour Government, to the national living wage brought in by a Conservative Government. Although the EU sets minimum requirements in many areas of workers’ rights and health and safety, Britain has time and again been in advance of those requirements and has chosen to exceed them.
The EU agency for the improvement of working conditions ranks the UK as the second strongest of all 28 member states, behind only Sweden, for wellbeing in the workplace. The UK offers 39 weeks of statutory maternity pay, compared with the 14 weeks required by the EU. We have given fathers and partners a statutory right to paternity leave, which the EU is only just beginning to consider.
Our national living wage is one of the highest in the EU, and the Low Pay Commission that advises on it is widely respected. Because we have not, in practice, been limited to EU standards, there is no reason why we should not maintain this record of leadership outside the EU. The Prime Minister has given a commitment that Brexit will not be allowed to erode workers’ rights.
Nevertheless, some hon. Members have advanced the view in previous debates that a parliamentary mechanism should be established to monitor and implement that commitment. The hon. Member for Great Grimsby (Melanie Onn) introduced a private Member’s Bill to that effect, and the right hon. Member for Don Valley (Caroline Flint) and the hon. Members for Bassetlaw (John Mann) and for Stoke-on-Trent Central (Gareth Snell), among others, proposed an amendment to a previous motion in a similar vein.
We have been discussing closely with Members on both sides of the House, trade unions and businesses how we can turn this intention into law. The Government are today publishing draft clauses for inclusion in the withdrawal agreement and implementation Bill to put these commitments into law. The clauses have two main features. First, a new statutory duty will be placed on Ministers introducing a Bill that affects employment or workplace health and safety that they should certify, before Second Reading of any such Bill, that it is compatible with the Prime Minister’s principle of non-regression. They will be required to provide explanatory information to Parliament in support of that statement, which will be drawn up following consultation with businesses and trade unions. That will ensure that, while respecting and upholding the sovereignty of this Parliament, Members of this House in future will be able clearly to consider the compatibility of every proposed measure with the non-regression principle, to which the Prime Minister has made a commitment.
The second aspect of the draft clauses concerns future EU legislation. Parliament will be given the opportunity, at least every six months, to consider any changes to EU workers’ rights, and health and safety standards in the workplace. This will be reported to Parliament through a document that has, again, been subject to consultation with employers and trade unions, and which will be scrutinised by the relevant Select Committees of this House, subject to their agreement. The Government will be required to table an amendable motion on their intended course of action on those new EU rules. For example, the Government may set out that they intend to legislate to give effect to those commitments or that they intend to give effect to them in a different way, or that they do not intend to give effect to them, setting out their rationale. There are a number of legislative proposals currently under consideration in the EU that have a deadline for transposition into national law which will be after the implementation period. We would expect them to be put forward for Parliament’s consideration under this new process. These draft clauses, published in a Command Paper today, combine well our determination to honour the commitment the Prime Minister has made not to see workers’ rights weakened and respecting the sovereignty of this Parliament.
A similar framework will apply to environmental protections as the UK leaves the EU, implemented through the environment Bill. On 19 December, we published the draft Environment (Principles and Governance) Bill, the first part of a much larger environment Bill to follow in the next Session. The draft Bill outlines our proposals to establish a world-leading body to hold the Government to account for environmental outcomes after the UK leaves the EU. The draft Bill also requires the Government to publish a statutory policy statement on the interpretation and application of nine environmental principles, including the four contained in EU treaties. The Government will also legislate to ensure that where future Bills could affect environmental protections, a Minister of the Crown will make a statement of compatibility to Parliament and provide explanatory information. We will also create a new statutory duty on the Government to monitor any strengthening of environmental protections and regulations by the EU, and to report regularly to Parliament about the Government’s intended course of action in those areas. That will give Parliament the information it needs to consider whether or not domestic protections need to be strengthened accordingly. Through these commitments, the Government will provide a robust framework for maintaining and strengthening environmental standards as the UK leaves the EU.
In addition to the measures I have described, I am announcing today steps that will strengthen the enforcement of employment rights. The vast majority of businesses operate fairly and treat their employees well, but I have been concerned, as I know many Members have been, about the practices in a small number of firms, in a small number of industries, where abuses of the conditions at work are used to the detriment not just of workers, but of reputable competitors, who suffer a disadvantage by comparison in those industries. I therefore intend to consult broadly on establishing a new body to bring together the relevant enforcement functions of the Gangmasters and Labour Abuse Authority, Her Majesty’s Revenue and Customs, and the Employment Agency Standards Inspectorate. As part of the forthcoming spending review, we will consider what level of funding is appropriate to ensure that it is adequately resourced to deliver a strengthened remit.
The measures that I have announced today reflect a process of engagement across this House, and with employers and trade unions. Not everyone will agree with every proposal, but if, as I hope, an agreement can be reached on the withdrawal process during the days ahead, it serves as a helpful guide as to how we might find and act on common ground across the House in the next phase of negotiations. I commend this statement to the House.
I must start by thanking the Secretary of State for his engagement with me over recent weeks, and indeed with trade unions and my parliamentary colleagues whom he mentioned: my hon. Friend the Member for Great Grimsby (Melanie Onn), my right hon. Friend the Member for Don Valley (Caroline Flint); and my hon. Friends the Members for Bassetlaw (John Mann) and for Stoke-on-Trent Central (Gareth Snell). They have championed unrelentingly the protection of British workers as we leave the EU and continue to help us move the position across the House to one that we are all content with.
However, as the Secretary of State knows from our discussions in recent days, sadly the proposals, as drafted, do not yet provide a full guarantee or assurance for UK workers. I hope that this spirit of collegiality will continue and that we will work together quickly to address my concerns and provide the changes and assurances that I seek. As he knows, the TUC has stated today:
“In the face of a government determined to reduce rights, these measures would in no meaningful way compensate for the loss of the protections that currently exist”.
The assessment of less favourability will be decided by parliamentary majority and not by the objective standards of the UK courts. The provisions can easily be revoked by a hostile Government, and even without being revoked, they can be rendered fairly meaningless in practice. Indeed, as drafted, the content of the proposed statement of compatibility and irregular parliamentary assessment of less favourability are not capable of legal challenge by any UK worker. Of course, the process outlined in the draft clauses could be subject to a judicial review, but simply issuing a statement and laying a motion are hardly rocket science. What will not be possible, however, is a challenge to the contents of a statement of compatibility or an approved parliamentary motion to accept a Government assessment.
I think the Secretary of State implied in his statement that we should not automatically accept favourable rights solely because the UK Parliament has already set higher standards of employment rights. On that point, let me be clear: no one—certainly none of the colleagues I have spoken to—is seeking anything other than that UK workers should be entitled to no less favourable rights at work than their EU comparators, not that we should accept unfavourable ones. That point is simple to draft and it could be made perfectly clear, and I am happy to work with the Secretary of State on that point.
Of course, Parliament is always welcome to give more, but history is littered with examples of the UK bitterly resisting EU directives on workplace rights. A Conservative Government sued the EU Commission over the working time directive, claiming that there was no legislative base for the directive since working time had nothing to do with health and safety at work. Luckily for workers in the UK and the rest of the EU, that Government lost.
On the promise not to water down existing rights and protections, even if a Bill is found to be incompatible, there are at present no powers to stop the Government proceeding. In addition, the promise does not apply to secondary legislation, potentially allowing existing EU-derived rights to be watered down with ease. The bulk of UK legislation to implement EU law is actually done by way of secondary legislation—for example, working time regulations, TUPE, and health and safety regulations, to name but a few.
On the process relating to adopting future improvements in EU legislation, the proposals are equally in need of addressing. The only means of challenge is in Parliament, with a vote on an amendable motion, subject to the Government’s majority. Parliamentary procedure may not permit sufficient amendments to deal with all the additional changes to workers’ rights identified by MPs. In any event, resolutions of the House have recently proven to be an ineffective restraint on the Government. The Secretary of State seeks to provide comfort by stating that the Government will consult workers, Select Committees and employers’ representatives, and that sentiment is of course welcome, but, as he knows, there is no direct obligation on the Government to accept any recommendations.
On enforcement, I do welcome the commitments the Secretary of State has made to address funding deficiencies. I await further details in due course. On 1 April 2004, there were 1,483 Health and Safety Executive frontline inspectors; but by 2015 that had fallen to 972. In consequence, the statistically average workplace can now expect an inspection no more frequently than every 50 years.
I have conveyed to the Secretary of State in recent weeks the fact that for a guarantee of non-regression to be truly meaningful, it must be enforceable in the UK courts at the suit of any worker in the UK. Any dispute about whether or not the worker has less favourable rights than her EU comparator must be determined by the courts and not solely by Parliament, still less by a politically motivated Government majority in the House of Commons. Today’s proposals come nowhere near that and do not yet demonstrate that this Government take workplace rights seriously. I do hope, however, that, in this spirit of co-operation, we will work together to move towards more robust guarantees as a matter of urgency.
What we are publishing this afternoon are draft clauses that have not yet gone into the Bill. I am open to working with all Members of the House—of course, continuing to include the hon. Lady—to see which of the observations can be accommodated, subject to the general approach we wish to take. I think that she recognises, and I hope other Members will recognise, that this is an important opportunity. If we are to pass a withdrawal agreement and implementation Bill, the chance to have on the statute book from the outset—literally within the next few weeks, I hope—some important protections for workers is one that I think we should all take.
The hon. Lady asked some specific questions, of which I shall attempt to answer as many as I can. She observed, in effect, that future Governments and Parliaments may take a different view from that which we intend. As we know, it is a fact that no Parliament can bind its successor, but it can express a clear intention, set up a test and provide mechanisms against which proper scrutiny of any proposal can be mounted, and that is what we are doing. I acknowledge her right hon. and hon. Friends’ contribution to and, in fact, origination of this idea.
The hon. Lady is concerned that the statements that are provided for could be ignored and may not be as effective as she intends. The case law clearly establishes that if a statutory consultation is provided for, it cannot be lightly swept aside. There is a requirement properly to engage with the recommendations that come from such a consultation, but I hear what she said about that process being open to workers as well as to people who might represent them. We can talk more about that.
The hon. Lady asked about the application to future changes to workers’ rights that may come outside primary legislation. Clearly, the big changes come through primary legislation, but in the spirit of what I said earlier, I am certainly open to exploring what assurances we can give on other significant pieces of legislation that might be in scope.
The hon. Lady mentioned the jurisprudence of the ECJ. It would clearly be inappropriate after Brexit for the ECJ to have a remit in the UK, but of course, as she knows as a lawyer herself, any court can have regard to the decisions of any court that it considers to be relevant in the case being considered.
The hon. Lady mentioned enforcement, on which we strongly agree. There are industries—sometimes concentrated in particular places in the country—in which what she described is correct: a calculation is made that employers who abuse the rights of their workers are unlikely to be detected and enforced against, which leads them to think that they can get away with it with impunity. The intention behind the strengthened enforcement body that I described, and our intention in terms of resourcing it, is to firmly remove that idea from the mind of any such employer. I will work closely with the hon. Lady on that.
It is appropriate to recognise in the House and draw some pride from our record of employment rights. We have a successful labour market that combines a reputation for high standards—standards that have been recognised throughout the EU as being among the best in Europe—while having what is the most important right for workers, which is the right to work. Many more people in this country are able to work as a result of the effectiveness of our labour markets. We need to preserve that while giving expression to the objectives articulated by the hon. Lady’s colleagues, to make sure that the commitment we have given to build on that strength in future is something that is not just a matter of words but has parliamentary force behind it. I am grateful for what the hon. Lady said about working together.
Rather than guaranteeing or protecting workers’ rights, the statement does no such thing; in fact, it would be a misrepresentation to suggest otherwise. The Secretary of State will be aware that the EU is currently discussing regulations on the gig economy and rights for working parents that are far better than what can be found in the Government’s good work plan. If those EU regulations come to pass, how will the Government deal with them in this Chamber? Given that we keep being told that the next election is in 2022, is the Secretary of State committing the Government to at least matching EU regulations until then?
Given that the statutory instrument process is being used to weaken workers’ rights, as we saw recently with the denial of access to European works councils, what makes the Secretary of State believe that we should trust the Government on this? Will he, as a gesture of good will, table an amendable motion on the Government’s good work plan that will allow Members to strengthen regulations, particularly around zero-hours contracts and their elimination and sorting out workers’ status?
The hon. Gentleman mentions the measures on the gig economy that are being contemplated by the European Union. Actually, that is a fine example of what I said earlier: those measures follow the commitments that we have made in the good work plan, and they are now making their way through Brussels. We were in advance of that. As I made clear in my statement, both those EU directives would go through the procedure that I described and would be available to the House, if Members thought there was anything extra in them. Actually, though, we think the directives are in many respects modelled on our own proposals.
On the ability of this House to enforce high standards, I say that that been the tradition. My experience as a Minister at European Councils over recent years is that our record of high standards when it comes to workers’ rights, employment protection and health and safety is looked at with admiration by many of our counterparts across the European Union. This allows us to continue that leadership.
What the Secretary of State is really promising today is future consultation and future opportunities for votes. Looking behind him, I do not see a great deal of commitment from those Benches to such measures. Why can he not go further? Why can he not agree to put a commitment into the withdrawal agreement and the treaty that the UK will never fall behind EU minimum standards on workers’ rights either now or in future? I know that he has mentioned parliamentary sovereignty and not binding future Parliaments but, historically, Governments have negotiated treaties and Parliaments have approved them and those treaties are binding on future Parliaments until they choose to withdraw from them. Why can we not have that sort of arrangement?
In my previous being, on behalf of the Transport and General Workers’ Union, I took the case of the Eastbourne dustmen all the way to the European Court of Justice because a Conservative Government refused to apply the acquired rights directive to 6 million public servants. We won and TUPE was extended to those 6 million public servants. In future, however, there will not be the same enforcement mechanism. The trade union movement has spoken with one voice today. Frances O’Grady said that this will not protect rights and that there is nothing to stop future Governments from tearing up the legislation. She added that no one should be “taken in” and that our rights are “still under threat.” Does the Secretary of State understand that residual concern and that, crucially, unless the Government go significantly further with regard to legally enforceable rights, not just depending on the whims of future Governments, she is right: these guarantees are worthless?
“I want to see changes in the way that big business is governed…we’re going to have not just consumers represented on company boards, but workers as well.”
Can the Secretary of State confirm that that promise to workers was broken?
I was a Member of the European Parliament from 1979 to 1984. Before that, I took a petition to the European Parliament in ’77, arguing for equal rights for men and women. I then became a member of the employment committee in the European Parliament, and I am glad to say that some of the things in that petition became law because of the European Parliament, not because of this place. You will know very well, Madam Deputy Speaker, that I was a shadow Employment Minister when the Opposition were working on the minimum wage. I know how hard we had to fight every inch of the way, because we were told that that was not possible, that it would cost jobs, that industry would not be able to afford it, and so on.
When there were big job losses in steel and coal, I was an MEP for one of the affected areas, and I took a group of steelworkers to Brussels to meet the Commission. The big criticism of the Government at that time was that the situation here was unlike that in Germany, where steelworkers were also losing their jobs, but every man in the steel industry in the Ruhr had another job to go to. In this country, there was no safety net. The criticism then was that there was a lack of social policy in this country. Why should I have faith that things have changed when I hear that the number of factory inspectors has diminished? If we do not have factory inspectors, we do not have people looking at the limitations in the industries. I would like to believe the Secretary of State, but I am sorry; I do not.
The right hon. Lady refers to drawing these protections from the European Union. Once we leave the European Union, the basis for a framework of workers’ rights will obviously not be there, and the alternative is that there would simply be no reference to what is happening in the European Union; that would be the default. We are responding to some helpful suggestions from the right hon. Lady’s colleagues that this House should keep a close eye on what is happening in the rest of Europe and that there should be an ability for the House to act on that. That is a good idea. I cannot say that it was my idea originally—it was brought to my attention—but when we recognise a good idea, I think we should back it.
I welcome the Secretary of State’s openness in his statement—both to amendments from Labour Front Benchers over the next few days, if there are precise amendments and, if they are not agreed, to the ability to table amendments to the withdrawal Bill that can be voted on by Parliament.
I negotiated the derogation, under the Labour Government, for one section of workers from the Work at Height Regulations 2005 because of the way in which the Commission framed the legislation. When it comes to health and safety, will there be automatic harmonisation—in other words, we accept everything that comes, regardless of its suitability to specific industries and groups of workers? When it comes to health and safety and sometimes environmental standards, that has been a fundamental issue, and it would be one if we had direct harmonisation.
“not enforceable either by the EU institutions or by the arbitration arrangements under the withdrawal agreement.”—[Official Report, 3 December 2018; Vol. 650, c. 559.]
So why on earth should we trust these clauses?
The hon. Lady talks about the framework that the European Union offers. We are leaving the European Union—I recognise that she would rather we were not—so the choice before us is whether, in leaving, we have no reference to anything that is done, now or in future, in the European Union, or we create a mechanism that allows this House to see what is going on and to be able to act on it, bolstered by the statutory requirements on any Minister, now or in future, to pay due regard to the statements that are made in terms of compatibility.
On the hon. Lady’s point about a future Government being able to repeal the whole lot, she knows enough about the British constitution to know that that is available for every law, in every circumstance, by every House of Commons following every election.
I am grateful to the hon. Lady for the contribution made by her private Member’s Bill. She has done the painstaking work of producing a great schedule of directives to which her Bill would apply. I propose—I hope she will not mind—that we plagiarise that and introduce it as the basis for our list of directives so that we can, if not replicate it in all respects, at least capture the spirit of her Bill.
However, I do agree with the hon. Gentleman on enforcement. A number of firms are doing such things, but they are not typical, by any means. Some of us will have read about some of the abuses in the garment industry in and around Leicester, for example. These simply cannot be allowed to continue without the steps being taken to restore confidence to those workers that their rights will be respected. That is the intention behind what I have set out in terms of strengthening and better resourcing our enforcement mechanisms.
Problems with enforcement of employment rights are not just in particular areas, but are widespread and particularly affect young workers, careworkers and catering sector workers, many of whom work in my constituency and have few other options for employment. I welcome the Secretary of State looking again to expand the enforcement of employment rights. Will he commit to group cases being taken to tribunal and to third-party representations being made to HMRC about the minimum wage?
Contains Parliamentary information licensed under the Open Parliament Licence v3.0.