Session 2022-23
Retained EU Law (Revocation and Reform) Bill
Supplementary written evidence submitted by UNISON (REULB47)
House of Commons Public Bill Committee for the Retained EU Law (Revocation and Reform) Bill
Introduction
1. UNISON is the UK's largest union with 1.3 million members. UNISON welcomes the opportunity to submit evidence on the serious concerns we have for workers rights and access to justice as a result of this proposed legislation.
2. Executive summary
§ This Bill creates a countdown for the expiry of vital protections in the workplace by 31 December 2023. This is an arbitrary deadline set by the Government for itself, that will present it with serious political and practical challenges. It is what the Law Society of England and Wales has called "a recipe for disaster and bad law-making ".
§ The process set out by the Government is not only rushed, but also opaque, undemocratic and gives enormous power to ministers – at the expense of MPs and public oversight. Not only have the Government not set out comprehensively what laws will be affected or what they intend to delete or retain, it has given itself widespread executive powers to rewrite these laws through statutory instruments requiring little parliamentary scrutiny.
§ Even if all vital employment rights are retained in full in time for the deadline with no watering down intended or legislated for (and this is currently unknown), we could still see a disastrous weakening of rights. This is because the letter of the law has over decades been illuminated by the decisions of courts and judges, especially UK courts. It is these shared understandings, careful interpretations and judicial wisdom that will now be lost. If passed into law, this Bill will deliberately wipe the slate clean and create confusion around the principle of precedent that UK common law is premised on. It places ideological principles above the lived, practical needs of the UK. Workers and employers will have to re-litigate important principles all over again at great cost to them, the economy and to our rights.
A countdown to disaster
3. UNISON does not understand why arbitrary deadlines were set by the Government before the work was done to produce a comprehensive list of affected legislation and a plan to protect important pieces of law. We are well into the parliamentary passage of the Bill, and yet the full scale and implications of the challenge the Government has set itself is only now being understood by Ministers.
4. There have been concerns expressed by civil servants that there is insufficient capacity to meet the challenge the Bill sets. The Financial Times has reported that the task presented to the civil service by the Bill was immense: "Whitehall insiders said that reviewing the majority of retained EU law by 2023 would present a massive bureaucratic burden. One senior Whitehall official estimated that between 1,000 and 1,500 statutory instruments would be required in order to convert retained EU law that was deemed necessary on to the UK statute book. [1]
5. In addition, a comprehensive list of what laws will be deleted, what will be retained and what will be restated or rewritten has not been provided. It was reported last week that the National Archives have found an additional 1,400 pieces of legislation that are due to be "sunsetted" [2] meaning that Ministers have proposed the automatic deletion of laws without first doing the due diligence of what exactly will be lost.
6. Workers and employers rely on these rights day in day out. They are not luxuries but the very foundation on which their working life and their family time is built. Our members have expressed alarm that any of these protections could be treated so recklessly and do not want them to be swept up in experiments in constitutional change. The unequivocal message we received from our members was: "Leave the rights of workers alone unless you are improving them."
7. UNISON is calling for the Government to withdraw this Bill. If it proceeds, UNISON believes it must urgently act :
§ T o remove workplace rights out of the scope of the Bill altogether.
§ Ensure r eviews take place to identify all relevant legislation and expert advice taken to ensure no dangerous mistakes are made.
§ Amend the B ill to change the 20 23 sunset deadline to 2033 to give Government departments due time for the review process to take place.
No democratic scrutiny or oversight
8. The bill gives the Government widespread executive powers to rewrite affected laws through statutory instruments requiring little parliamentary scrutiny and with no mandate from voters. The Government has not produced a list of at-risk legislation to accompany this Bill. It has instead created a "dashboard" – a search engine which it has invited the public to use. Different key word searches have produced different pieces of legislation at risk of being sunsetted, but UNISON believed that these search results are not comprehensive and could thus be misleading. The Government has now confirmed that its dashboard is not comprehensive [3] .
9. The Government has not committed to replacing EU-derived legislation, some of which is woven into UK Acts of Parliament, with like-for-like UK protections. Instead BEIS says that this is ‘an opportunity to move away from outdated EU laws to establish our own rules that are better suited to the UK. [4] " However, there has been no guidance or indication about which laws BEIS considers to be outdated and what improvements are intended to be made that make them "better suited to the UK".
10. Any replacement for these rights would require little parliamentary scrutiny – and leave core worker rights in the gift of ministers. It would only take sins of omission for dangerous gaps to appear.
11. This Bill also undermines and cuts across the devolved powers of Scotland and Wales. The Welsh Government has warned that "as currently drafted, this legislation could see UK Government Ministers given unfettered authority to legislate in devolved areas – contrary to the democratically established devolution settlement [5] ". The Scottish Government expressed concern that the proposals ‘represent a significant further undermining of devolution. By allowing UK Government ministers to act in policy areas that are devolved, and to do so without the consent of Scottish Ministers or the Scottish Parliament, is in direct contradiction to devolution and, in particular, the Sewel convention which was given statutory footing…the speed at which the legislation is being pursued…is nothing short of reckless, compounding the recklessness of the propositions themselves" [6] . UNISON believes that encroaching upon devolved areas to actively make lives worse for working people will damage the democratic legitimacy of the Westminster Parliament in the eyes of people in devolved nations.
12. During the House of Commons debate on the second hearing of this Bill, the lack of scrutiny argument was dismissed as invalid because elements of EU law had also been adopted through affirmative regulations and SIs. However, the Government cannot then argue that REUL is bringing sovereignty and democratic control back to the legislative process by obviating long-established consultation processes normally undertaken by Parliament. Any meaningful attempt to increase democratic oversight would seek to redress any identified flaws. Parliamentary safeguards exist precisely because Ministers might always be tempted to resist scrutiny from parliament. These safeguards are important if for no other reason than that scrutiny and debate will prevent errors, omissions and mistakes.
13. UNISON is calling for amendments to:
§ introduce greater democratic scrutiny and debate for any restatements, deletions or rewriting of affected Retained EU Law.
§ ensure that devolution settlements are respected and greater democratic oversight and consent from devolved governments, assemblies and parliaments are built in.
Workers’ rights, family friendly rights and women’s rights
14. UNISON believes that the Government must act urgently to exclude a host of key workplace rights from the scope of this Bill. We are not aware of whether the Government intends to restate these rights ahead of any sunset clause . E ven if these rights are restated with no changes and the sunset clause is extended , the issue of their interpretation is unclear . This is because the letter of the law has, over decades, been illuminated by the decisions of courts and judges, especially UK courts. It is these shared understandings, careful interpretations and judicial wisdom that will now be lost. If passed into law this Bill will deliberately wipe the slate clean and create confusion around the principle of precedent that UK common law is premised on. It places ideological principles above the lived, practical needs of the UK. Workers and employers will have to re-litigate important principles all over again at great cost to them, the economy and to our rights.
15. As one of the UK’s leading employment law experts, Michael Ford KC has written, "over many years and after much litigation, decisions of the European Court of Justice and the domestic courts have clarified the practical operation of the right to annual leave. The same applies to the 40-odd years of cases clarifying TUPE protections of employees’ rights. These judgments will no longer be binding. 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 Sisyphean task with dismay . [7] "
16. This is why the Employment Lawyers Association (ELA), an unaffiliated and non-political group of specialists in the field of employment law have warned that it would create "an employment law wasteland of uncertainty, increased costs to business and industrial levels of employment litigation. Delays in the Tribunal system and then delays as this waterfall of litigation proceeded through the appeal Courts would mean that it would be years before the many issues and principles would be resolved."
17. This is also likely to drive an expansion in employer HR staff and activity needed to fill legislative gaps, create a need for new employer policies and increase the possibility of mass collective bargaining claims by trade unions to replace statutory rights.
18. When UNISON gave oral evidence to the Bill Committee, we emphasised how interwoven the tapestry of our key workplace rights and protections are with EU legislation, UK legislation and case law. For example, discrimination, equal pay, maternity and paternity protections have developed over time. Separating out those decisions that are derived from EU legislation would create deep uncertainty in this area, and years of progress made particularly with women’s rights at work. For example, the removal of the ability to make claims for equal pay for work of equal value done by different sexes along with the clarity that the case law has brought to this area over many years will disappear. This will lead to delays as more and more test claims which will clog up an already backlogged court system will be needed to clarify the law; and these cases will have to be pursued at a cost to the individuals bringing the claims, along with very high legal fees to bring appeals to the appeal courts running to thousands of pounds. This, along with the removal of part-time and fixed-term contract protections along with maternity, and pregnancy protections is a reversal of long fought rights for women.
19. The removal of family friendly policies, which seek to ensure that childcare is not a "women’s issue" alone but one for all parents, and the removal of hard-won rights for women in the workplace, is an attack on all working women. Protections for part-time workers disproportionately affect women workers. UNISON has used these provisions to assert the rights of school-based term-time workers, i.e. Teaching Assistants, Cleaning and Catering staff, who as part-year workers were not receiving the correct pro-rated leave as full year workers. This has resulted in approximately £85m in back pay across Local Authorities in England for this miscalculation.
20. What’s at risk:
§ Working Time Regulations 1998
- Minimum rest breaks
- Maximum 48 hour working week
- Statutory right to minimum paid annual leave
- Protection from being subject to a detriment or dismissed if refusing to comply with a requirement in breach of WTR.
§ Maternity and Parental leave Regulations 1999
- The right to paid maternity, paternity and parental leave
- The right not to be subject to a detriment or dismissed for having exercised their rights to take leave under the regs.
- The right to return to the same job employee had before going on maternity leave.
§ The Management of Health and Safety at Work Regulations 1999
- A duty on an employer to carry out an assessment of the risks to new and expectant mothers in the workplace.
- Where there are risks, to make an adjustment to the individual’s working conditions or hours of work.
- Suspension of employee on full pay for as long as necessary where it is not possible to avert risks.
- Specific protections for young people in employment.
§ The Health and Safety (Consultation with Employees) Regulations 1996
- Rights for employees to be consulted on health and safety or paid time off to carry out training and health and safety duties.
- Rights to be protected from being dismissed or victimised for carrying out health and safety duties.
§ Article 157 of the Treaty on the Functioning of the EU
- The right for women to compare themselves with men working in other establishments on the basis of equal pay for work of equal value.
§ Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
- Parity of treatment for part-time workers with their full-time colleagues
- Protection from being subject to a detriment or dismissed because of asserting a right under the Regulations.
§ Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002
- Protection from less favourable treatment
- Right to be informed about permanent roles with the employer
- Right to become a permanent employee once they have been continuously employed under fixed-term contracts for four years.
§ Agency Worker Regulations 2010
- Protection from being subject to detriment or dismissal on grounds that they refused to forgo a right or alleged a breach under the regulations.
- Right to parity of terms and conditions after 12 weeks
- Right to be informed of any vacancies to be employed directly.
§ Transfer of Undertakings (Protection of Employment Regulations) 2006
- Right to automatically transfer on the sale of a business or outsourcing/insourcing arrangements as a part of a business transfer.
- Protection against dismissal or changes to their terms and conditions imposed because of the transfer (unless there is an ETO reason).
- Right for affected employees to be informed about the transfer and its impact or consulted on any measures envisaged by the new employer.
§ Information and Consultation of Employees Regulations 2004
- Right of employees to be entitled to negotiate an agreement with their employer to ensure that they are informed and consulted in respect of any economic or employment related matters in the workplace.
Discrimination
21. The Government’s own equality impact assessment highlights the potential risk to people with protected characteristics:
"The measures in the Bill do not constitute direct discrimination. However, 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, in the unlikely event that specific rights related to the protected characteristics aren’t retained in any form." [8]
22. It is not sufficient to simply say that a lowering of protection is an ‘unlikely event’ with no legislative assurances. This is not borne out, firstly, due to the artificial and arbitrary deadline the Government has set itself; secondly, due to the dissolving of decades of case law and legal judgements that have provided the foundation of clear and shared understandings by employers and workers; and thirdly, because one of the mitigating factors the Government has identified, that
"Courts will still be required to uphold other requirements which may be relevant to case law in this area such as those under the section 3 of the Human Rights Act (HRA) to interpret legislation consistently so far as possible with, rights in European Convention on Human Rights (ECHR). [9] "
are also under threat from the Government. The proposed Bill of Rights aims to repeal Section 3. This will only create confusion, and further uncertainty for workers and employers.
Impact on the judicial system and access to justice
23. The Bill also attempts to ‘facilitate’ the departure from EU law and principles by UK courts. It is proposed that a lower court or tribunal should refer points of general public importance to a higher court (e.g. the UKSC or Court of Session) for determination.
24. Aside from the inevitable delay and additional costs this would bring to all proceedings involving retained EU law, it creates an opportunity for an unsuccessful party to re-argue cases that were decided many years ago, to the benefit of litigants with deep pockets at the expense of those with little financial resources.
25. The UKSC currently operates with significant delays and this ‘reference back’ process, so far without any further resource provided to the UKSC for this role, would likely create an even greater interference with access to justice. It would also introduce huge uncertainties for employers and workers to the detriment of both. As ELA says, "uncertainty as to the law drives litigation and is the enemy of compromise [10] ".
26. For this reason UNISON agrees with the House of Lords Constitution Committee that it is not appropriate for ‘courts other than the Supreme Court and the Scottish High Court of the Justiciary to have power to depart from the interpretations of EU case law. Allowing lower courts to reinterpret EU case law risks causing significant legal uncertainty that would be damaging to individuals and companies.’ [11]
UNISON calls for amendments that would restrict the ability of lower courts to reinterpret EU case law; and to fully resource any judicial function required to provide a ‘reference back’ service.
15 November 2022
[1] https://www.ft.com/content/2d59739d-9e17-4c92-98ee-85eab12c00a4
[2] https://www.theguardian.com/politics/2022/nov/08/government-finds-extra-1400-laws-scrap-rees-mogg-brexit-bill
[3] https://questions-statements.parliament.uk/written-questions/detail/2022-10-19/66986
[4] https://www.ft.com/content/2d59739d-9e17-4c92-98ee-85eab12c00a4
[5] https://nation.cymru/news/welsh-government-raises-fears-that-eu-law-bill-is-another-power-grab-by-uk-government/
[6] https://www.gov.scot/publications/retained-eu-law-bill-letter-to-the-uk-government/
[7]
[8] https://publications.parliament.uk/pa/bills/cbill/58-03/0156/REUL_Bill_Impact_Assessment_22-09-2022.pdf
[9] Ibid p5
[11] https://publications.parliament.uk/pa/ld5801/ldselect/ldconst/5/5.pdf