These Regulations have been proposed by Government to amend existing employment rights legislation in the event of a “no deal” EU withdrawal.
The Regulations are presented as technical formalities which simply remove reference to EU legislation from UK laws. They are currently subject to the negative resolution procedure and in line with this process will not currently be debated in either the House of Commons or the House of Lords.
However, if enacted the Regulations would have significant implications for UK workers’ rights. They also have potential to introduce new legal uncertainties.
The TUC is committed to ensuring the Government maintains a fully level playing field for workplace rights once the UK has left the EU. We are extremely concerned that these Regulations will fail to achieve this ambition. They are out of line with the Prime Minister’s promise that workers’ rights will retain continued parity with EU law after Brexit.
Our strong view is therefore that the Regulations should not proceed as drafted. Given the significant detriment they could bring for UK workers, they should be debated in both Houses before they have the potential to come into force.
The following brief sets out our high-level concerns with the Regulations as drafted and makes the case for them to be subject to the affirmative procedure. Full parliamentary briefing will follow in due course.
The Regulations remove powers by which Ministers can enact legislation to keep UK law in line with EU law. This means it will be harder to keep workers’ rights up to the same standard as EU workers’ rights as EU law develops.
The TUC does not accept that these powers should be removed and is concerned that the government is opting to use EU Withdrawal Act powers to weaken employment rights. This sends the wrong signal to people at work, suggesting the government does not intend to fully comply with its commitment to protect employment rights post-Brexit.
The TUC recognises that the government may need to make very minor changes to employment law post-Brexit to ensure the statute book operates effectively. But these regulations go beyond minor technical changes of this nature.
In our opinion the government should at most be introducing minor amendments to existing powers, rather than removing them in their entirety. Any such minor revisions should clearly provide powers meaning that post-Brexit the UK government will comply with (or at least consider if UK law should keep pace with) developments in EU law.
In its explanatory memorandum the government sets out that the Regulations will come into force in the event of no deal with the EU. However, some provisions in the Regulations are scheduled to come into force on 1 December 2018, all others on “exit day”. The whole of Schedule 1 of the Regulations (amending primary employment rights legislation), along with three amendments to secondary legislation will, if enacted, come into force on 1 December 2018.
There is no explanation as to why some provisions come into force before exit day, or the implications of this in the range of scenarios which could unfold from 1 December 2018 onwards. We recognise that these regulations should be debated and scrutinised now but cannot see why they need to come into effect in advance of the UK’s exit. We are also particularly concerned that there is no statement from government as to their timetable for revoking these powers should a withdrawal agreement with the EU be reached after 1 December 2018.
The early commencement dates in the legislation create considerable scope for error and legal uncertainty in relation to the timings and process for either implementation or revocation of the Regulations (depending on whether the Government reaches a deal with the EU, when this takes place, whether a transition period is agreed and what the provisions of any such transition period are). Government must provide greater clarity on the rationale behind the timings set out in these regulations, as well as clear commitments regarding the revocation of these regulations in a ‘deal’ scenario.
EWC rights are cross-border rights, which depend upon membership of the single market/European Economic Area (EEA). In the event of no deal numerous worker rights relating to European Works Councils (“EWC”) will be lost. For example, UK workers would no longer be entitled to request the establishment of an EWC, union representatives would lose the right to participate in negotiations on the establishment of an EWC and workers could lose out on the numerous benefits EWCs can bring.
The opportunity for UK workers to participate in discussions with European colleagues on company-wide issues is valued by both businesses and their employees. It can include opportunities for the workforce to be included in strategic multinational decisions around jobs, investment and training. Employers and unions are concerned that if UK reps lose their place at the table, the risk to UK jobs and investment will increase.
The loss of such rights would be a concerning and detrimental no deal outcome. In this context, the TUC continues to call on the government to secure a deal which would maintain the participation of UK workers within this EU framework and it is vital that parliament is made fully aware of this consequence.
We have welcomed the government’s efforts to preserve existing EWCs but believe that UK employment rights protection should also be also be offered to workers who wish to set up an EWC in the future (recognising that in a no-deal scenario future participation would be contingent upon reciprocal agreement with other EU countries). We encourage government to amend these regulations to offer some UK employment rights protection to EWC members which could aid future participation, even in a no-deal scenario. For example, regulations could be retained to ensure reps have rights to time off to participate in meetings and undertake training.
However, as presently drafted the Regulations remove rights for UK EWC reps in their entirety and make no efforts to put future protections in place. The Regulations set out that in the event of no deal, numerous worker rights relating to and facilitating European Works Councils (“EWC”) will all be lost.
The TUC proposes that due to the significant legal consequences of the changes to be made by the regulations and the risk of potentially defective drafting in relation to timings of enactment, in line with the requirements of Schedule 7, Part 1, para 3 (4) of the European (Withdrawal) Act 2018 the committee recommends the affirmative resolution procedure is the appropriate procedure for these Regulations, or that the Minister now exercises discretion to this effect.
The aspects of the powers being repealed by the SI would not, in absence of the SI and if left in law, be able to be used by the Government as they relate to obligations under Directives. The UK will no longer have obligations in a ‘no deal’ scenario and therefore these powers cannot be used. We are repealing these aspects of the powers in order to tidy up the statute book. This has no material impact on the powers themselves. The other current powers to amend legislation will be retained as now, so there will not be a policy vacuum.
In addition, a power to ‘keep pace’ with EU law – which may be what the TUC is seeking – in a ‘no deal’ scenario would be a policy change and outside the scope of the powers in the European Union (Withdrawal) Act under which we are making the SI. Amendments seeking this outcome were tabled (but failed to pass) during the passage of the Bill.
The three provisions which are commenced on 1 December 2018 are all updates to out of date references to EU legislation, which we are making as a matter of legislative housekeeping rather than to address issues caused by exit. These amendments are not made under powers in the EU Withdrawal Act, but under s.2(2) of the European Communities Act 1972. As such it is sensible to commence those provisions earlier, and well in advance of exit.
Also picking up on one of the other points raised by the TUC, the SI will only be needed in a ‘no deal’ scenario. Any changes needed to legislation are likely to be different in a scenario where there is a deal, depending on the terms of that deal. In that case we will therefore ensure that this SI (along with other ‘no deal’ SIs which are in a similar position) will not come into effect.
The current rights are being retained. The changes are in relation to new requests to establish an EWC, which will not be possible as the EWC Directive will no longer apply to the UK in a ‘no deal’ scenario. Any impact on the rights of workers to be represented on or by EWCs is as a result of leaving the EU without a deal covering EWCs, not as a result of the SI.
Making amendments to UK law to provide for additional or new protections as the TUC seems to be suggesting would be outside the scope of the powers in the European Union (Withdrawal) Act.