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My Lords, there are various reasons why voters in June denied the Government the mandate and the landslide they expected, but the world of work will have fuelled their sense of unfairness and loss of well-being. Wages have been weak for much of the period since 2008 and cannot be explained simply by low productivity or slack in the labour market. The Bank of England’s chief economist identified structural factors that have contributed to weakening wages: technology, globalisation, the changing nature of work and the shifting relationship between employers and employees. Increasing self-employment, zero-hours contracts, flexible and part-time working have further weakened employees’ bargaining power and fed heightened insecurity across the low-income and middle-income labour market. He referred to a modern period of divide and conquer, a growing world of “divisible” jobs and idiosyncratic wages raising important economic and social issues about the modern workplace—trends that are unlikely to reverse.
“All the empirical studies show that it is not employment regulation that stultifies economic growth”— a concession at odds with the red tape review, which specifically targeted employment law and equalities for scrutiny, resulting in, for example, the qualifying period for protection from unfair dismissal rising to two years and hefty fees for workers accessing employment tribunals. In the same article he commented:
“There is also a political, or perhaps sentimental point. The great British industrial working classes voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights”.
That is not a statement of conviction on delivering a fairer society; it is a statement of political pragmatism. The working class voted for Brexit, so do not rattle their cage—at the moment. But employment rights are part of a fair and inclusive society, not a reward for the working class to be given or removed on the mood swing of a political class.
The Prime Minister promised that,
“existing workers’ legal rights will continue to be guaranteed in law—and they will be guaranteed as long as I am Prime Minister”.
But for how long can she police her own promise? The Chancellor is right: people did not vote to become poorer or less secure. Employment rights and living standards should be central in negotiations on the UK’s future relationship with the EU. Withdrawal would mean that rights currently guaranteed by law would no longer be so guaranteed. Some employment rights are enshrined in UK primary legislation while many are located in secondary legislation. The implications for the great repeal Bill of those many rights located in secondary legislation are very uncertain. If in the Bill employment rights contained in secondary legislation do not move into primary legislation, they would be exposed to simple revocation by secondary legislation.
The Government give three reasons for using secondary legislation in the great repeal Bill: to implement the Article 50 withdrawal agreement; to make adjustments to policy, correcting the acquis so that it works properly from day one; and to provide for a level of detail inappropriate for a Bill. The Delegated Powers Committee has expressed concern that each of these reasons may well result in secondary legislation being used to implement significant and controversial policy matters involving fundamental policy choices. As to secondary legislation providing for a level of detail inappropriate for a Bill, the committee observed:
“This is uncontroversial as a general principle but, in the context of withdrawal from the EU, is more controversial. The main reason why, since 1973, secondary legislation has been used to give effect to most EU law is not because the law is unsuitable for being dealt with in a bill. It is much more to do with the fact that Parliament would have been overwhelmed with the sheer volume of primary legislation … had it been the principal vehicle of transposition”.
As it is now 10 o’clock I will rest on the argument that my noble friend Lord Adonis eloquently reasoned. Put simply, leaving the EU is frighteningly bonkers. In the absence of EU treaty commitments to protect workers and to limit the further driving down of wages, common employment standards must be part of future trade deals. They must be given the same status as technical specifications, consumer protections, and safety and environmental standards. Without integrating them formally into future trade deals, the Government’s promise in the gracious Speech to seek to enhance rights and protections in the workplace will be simply untrue.