“an unprecedented and extraordinary portmanteau of powers upon which the Government could draw”.
We are now seeing growing concern that by our giving such powers, well beyond those needed to effect legal continuity, Ministers could use them to effect substantive policy changes. That is what is at the heart of this tension.
Many important protections currently enjoyed by UK citizens are not written into Acts of Parliament but underpinned by membership of the EU, which cannot be weakened by the UK Government. Once some of those protections are brought into domestic law by secondary legislation, there is no assurance that they can be changed only by primary legislation. The Bill will also allow Ministers to use the delegated powers contained in existing UK legislation to effect significant policy changes to retained EU law. The powers under Schedule 8 have already been referred to.
The merit of Amendment 21 is that it poses greater protection by enhancing scrutiny of ministerial amendments to retained EU law and restricting the modification of retained EU law by subordinate legislation to technical provisions. Such modifications could not limit the scope of or weaken standards and protections afforded to UK citizens. Amendment 21 makes a clear distinction, which the Bill fails to do, between technical and substantive policy changes—between necessary amendments to retained EU law to provide legal continuity and the wider issue of discretionary amendments that implement substantive changes to policy.
I want to refer to employment rights and consumer standards to illustrate the amendment’s merits. There are many EU-derived equality and employment protections enjoyed by the people of this country that are essential ingredients of economic fairness and social cohesion. These are rights which working people now take for granted, including rights to paid holidays, equal pay for equal-value work and equal treatment in the workplace.
The safety net for employment and equality rights will be weakened when the UK leaves the EU and the future framework of EU law, including the court system that supports these rights. Individuals will no longer be able to bring a free-standing legal challenge that UK law breaches the principles of EU law or seek Francovich damages where the Government fail to respect rights derived from EU law. Ministers will be free to pursue significant changes to employment and equality protections without the need for primary legislation.
Amendment 21 would ensure that Ministers cannot use the correcting powers in this Bill to weaken protections enjoyed by UK citizens. The Government will need primary legislation to do that. People are entitled to greater legal certainty that ministerial powers intended to convert EU law into domestic law will not be used to undermine their protections. Ministerial promises will not suffice. David Davis, in his recent Vienna speech, said the UK wanted to lead a,
“global race to the top”,
in rights and standards, and not a,
“competitive race to the bottom”.
However, ministerial statements have currency only until the next ministerial occupant. Recent government changes to employment rights heighten concerns. They capped compensation awards in unfair dismissal cases, which they could do as core rights on unfair dismissal are based on UK law. There are concerns that, post Brexit, compensation rights derived from EU law will be capped. The consultation period in the event of mass redundancies was halved. Fees introduced for employment tribunal claims led to a dramatic fall—of approximately 70% in cases going to tribunal, with women and low-paid workers particularly disadvantaged. The Supreme Court struck down those fees, but the Government hinted that a new fees scheme could be introduced.
The Government have spoken of a “new economic model” when the UK leaves the single market. They know of the growing fears that the Government will cut employment protections. David Davis, Brexit Secretary, specifically called them out in his recent Vienna speech when he asserted that Britain will not be plunged into,
“a Mad Max-style world borrowed from dystopian fiction”,
after it leaves the EU. He went on:
“So while I profoundly disagree with those who spread these fears—it does remind us all that we should provide reassurance”.
Promising to behave better than characters in “Mad Max” still leaves a lot of scope to behave badly, and provides little reassurance. This amendment would allow the Government to make a significant contribution to providing that reassurance by constraining the Executive uses of power in this Bill, and weakening protections currently enjoyed by the people of this country.
My underpinning reasoning applies equally to standards of consumer protection. Consumer protection standards are integral to the economy, as every month consumers spend £100 billion in the UK and, in doing so, support UK businesses, manufacturers and employees. Which?, the consumer organisation, captured it well when it observed that on the current drafting, the Bill is,
“effectively offering a carte blanche to Ministers … a Minister could realistically make sweeping changes to laws that impact on consumers in areas such as food and product safety standards, approval systems, and the oversight of financial services … changes of this scale and nature, which could impact on the Government’s general policy approach, the nature of current consumer protections and even governance, oversight and enforcement arrangements, must be subject to wider scrutiny in order to ensure the best outcome for consumers”.
I take another example from the Financial Conduct Authority—we should look at some of the commentary coming from the financial sector—and the FCA handbook, through which some EU-derived legislation is implemented. The powers in the Bill allow Ministers not only to make significant changes to that handbook, which could impact on consumer standards, but to alter the balance of responsibilities in the financial services sector and upset institutional coherence within the regulatory bodies. Is it any wonder that we are seeing such an amendment as Amendment 21?
In supporting this amendment I do not want to get into a debate about the preferred economic model for the UK post Brexit. My concern is to constrain ministerial powers intended to convert EU law into domestic law from being used to implement substantive changes of policy. I say to the noble Lord, Lord True: I do not want these powers given to any Executive. I happily concede that point.