Warnings over workers’ rights as Retained EU Law Bill proceeds (2023)

The controversial Retained EU Law Bill was debated in the Commons this week, but what are the key issues surrounding its potential introduction, and its impact on workers’ rights? Adam McCulloch reports.

Fears over the Retained EU Law Bill come in four flavours. First, many argue the deadline of the end of this year for laws to be revoked is completely unrealistic. Then there are the sweeping powers given to ministers to replace laws, with little scrutiny. Many legislators are troubled by the lack of knowledge about how many and which laws are affected. Finally, when these threads are put together, there are fears that workers’ rights will be weakened and employment law muddled.

Amendments designed to require the government to publish an audit of statutes introduced under the UK’s membership of the EU, and to extend the deadline for the replacement of statutes, have failed.

The amendments, tabled on 18 January, would have given the House of Commons more knowledge of which laws were being changed, something that may have helped ministers, not hindered them, said supporters of the proposed changes.

Hilary Benn MP argued that the amendments sought “to give substance to what the government claims, which is that they have no intention of sweeping away lots of environmental and consumer protection and workers’ rights laws; they just refuse to be specific about the ones they are going to keep.”

For the government, minister for industry and investment security Nusrat Ghani, said retained EU law was “constitutionally undesirable” and that fears over workers’ rights were the result of misinformation.

The failure of the amendments to the Bill, introduced last September, has fed fears of an impending “bonfire of regulations” including many in workers’ rights, which may affect rights to holiday pay and maternity pay.

The speed at which government proposes to review retained EU law is a recipe for bad law-making” – Law Society president Lubna Shuja

The government has counted 2,400 affected pieces of legislation, but the national archive has unearthed another 1,400. The exact total of laws affected remains unknown and there are fears that some may fall into the legal sinkholes when some statutes vanish.

Paul McFarlane, chair of the Employment Lawyers Association (ELA), warned: “The chaos, ambiguity and potential damage this Bill could do to employment rights should not be underestimated. It has the potential to decimate workers’ rights.”

Critics of the Bill, who come from all political parties, business, the legal sector and environmental groups, argue that it allows ministers to dictate into law something that “corresponds” or “is similar to” the European rule being supplanted. MPs would not have the power to effectively scrutinise the measures, they say, leaving ministers ruling by decree.

The Bill stipulates that ministers would not be permitted to write anything that increased the “regulatory burden”. This is defined as anything imposing a cost or bringing an obstacle to “trade, innovation, efficiency, productivity or profitability”. For the legislation’s many critics this flashes warning signals over workers rights and environmental regulations.

Then there is the ambitious timetable: Ghani told the Commons that the Bill would end the special status of retained EU law on the UK statute book by the end of 2023.

Among the Bill’s many opponents in the chamber was Conservative MP Sir Robert Neill who said it would damage business confidence. To inflict it “by means of Henry VIII powers so wide that all scrutiny is, in effect, removed from this House is not taking backing control but doing the reverse of what the government seek to do,” he added.

There is a whole back catalogue of ministers and cabinet ministers saying why they want to get rid of these burdensome employment rights” – Justin Madders MP

Shadow minister for employment rights Justin Madders, who proposed the amendments, addressed Ghani’s promise that employment rights were more likely to be strengthened than weakened under the Bill by asking the House: “But what is this government’s record on employment rights? They doubled the time to be able to qualify to claim unfair dismissal, taking millions of people out of being able to claim that right.

“They slashed the consultation periods for people on redundancy. They introduced employment tribunal fees. Their record on employment protection is not a good one. There is a whole back catalogue of ministers and cabinet ministers saying why they want to get rid of these burdensome employment rights. We are right to be worried about where this is all heading.”

Madders raised the issue of the 800 without notice on the government’s watch and the failure to introduce an Employment Bill.

Caroline Lucas said the Bill offered no certainty to business because no one had any idea which laws would be kept or jettisoned and that Ghani had tacitly admitted she did not know how many laws were on her dashboard.

Ghani responded that fears over maternity rights, mentioned by several MPs, were part of an “unfortunate misinformation campaign”, adding: “The UK has one of the best workers’ rights records in the world, and our high standards were never dependent on our membership of the EU.”

Jacob Rees-Mogg, the proposer of the Bill, backed Ghani and told MPs that Britain was making its only laws well ahead of Europe on workers’ rights as early as the 19th century. Madders responded that for Rees-Mogg that era had been Britain’s “golden age”, implying the former cabinet minister’s comment had added to – not assuaged – fears over rights.

Many MPs were critical of the timetable for replacing the EU laws. Madders told MPs: “I have yet to hear any rational justification for the deadline of 31 December 2023 for the jettisoning of all EU regulations. We are told that it is an imperative that we free ourselves of the shackles of these regulations by that date and that we must hurry along and free ourselves of the 2,400 or 3,800 regulations – or however many it turns out to be – that are holding us back.”

John McDonnell MP added that against a backdrop of civil service strikes and redundancies he knew of “no civil servant who has any confidence that the deadline will be met.”

Madders referred to a warning issued by the Law Society president Lubna Shuja over the Bill.

Shuja said earlier this week: “The speed at which government proposes to review retained EU law is a recipe for bad law-making. As it stands the bill would entail bypassing parliamentary scrutiny and stakeholder consultation by giving ministers the power to independently revoke, restate, replace or update retained EU law.

“The net result of this unnecessary haste and over-reach is likely to be a period of uncertainty over the status of regulations that would affect consumers, business, government departments and the courts.”

McFarlane, at the Employment Lawyers Association (ELA), added that the Bill would leave employers and employees “in a state of profound uncertainty. Businesses will struggle to plan for growth, investment will drop and disputes and litigation costs will rocket”.

It will result in the UK waking up on 1 January 2024 to a New Year where lawyers will not be able accurately to predict or advise upon disputes” – Paul McFarlane, Employment Lawyers Association

He said that the Bill would impact women more than men because issues such as equal pay, parental leave and rights for part-time workers would be affected, and some rights would vanish.

“The Bill’s equality impact assessment confirms the government’s commitment to upholding high standards in equality but does not expressly acknowledge the potential disparate impact of revoking these regulations,” said McFarlane.

“If passed, this Bill would mean that swathes of well understood and established employment law and the principles to interpret them are put on a doomsday clock by the end of 2023. It will also result in the UK waking up on 1 January 2024 to a New Year where lawyers will not be able accurately to predict or advise upon disputes, causing great uncertainty for workers and employers.”

The Retained EU Law Bill is now at its third reading stage in the Commons, after which it will go to the Lords for further scrutiny. Many commentators suggest the Lords are likely to return it to the Commons for further amendment. Certainly, HR professionals and lawyers will have to keep up with its progress given its potential ramifications.

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Adam McCulloch

Adam McCulloch is a freelance writer and production editor who has worked in sectors including travel (The Guardian), aviation (Flight International), agriculture (Farmers' Weekly), music (Jazzwise), theatre (The Stage) and social work (Community Care). He also works for a national newspaper and is the author of KentWalksNearLondon