I could not have put it better myself. That is precisely the problem, and that is precisely what new clause 58 seeks to address.
The uncertainty that surrounds the status and interpretation of retained EU law is a real weakness, but irrespective of what happens, retained EU law, as defined in the Bill, is vulnerable to secondary legislation contained in other Acts of Parliament, which will have been drafted in a very different context—in the context of a country whose long-term future appeared to reside unambiguously in the European Union.
Perhaps the most potent example is the Legislative and Regulatory Reform Act 2006. Part 1 provides for Ministers to introduce statutory instruments to remove burdens resulting from legislation, including primary legislation. A burden, for the purpose of that part of the Act, includes a financial cost or
“an obstacle to efficiency, productivity or profitability”.
That Act is a potent piece of legislation as it is, but it will be far more so as a result of this Bill if it can be used to alter a raft of EU rights and protections that are currently underpinned by EU provisions.
This is not just about the powers in the Legislative and Regulatory Reform Act. Other examples come to mind, such as section 5 of the Localism Act 2011 and section 11 of the Public Bodies Act 2011. All contain wide powers to alter regulations, and all were passed in the constitutional context of our rights and protections being underpinned by our EU membership. All will become more powerful after exit today.
Retained EU law would also be vulnerable to recently proposed legislation and legislation currently making its way through this place. For example, the Nuclear Safeguards Bill, which is currently in Committee in this House, contains proposed new clause 76A(6) to the Energy Act 2013, which provides that the delegated power in section 113(7) of the Energy Act can be used to make changes to retained EU law. Similarly, clause 2(6) of the recently published Trade Bill provides for regulations that can be used to modify primary legislation, including retained EU law. The same, we can only assume, is likely to be the case for the immigration, agriculture and other Bills we expect in the coming months as part of the process of legislating for Brexit.
New clause 58 would ensure that regulations of the kind provided for by those Bills could not be used to amend or repeal retained EU law in the five areas I have set out, thereby according them a level of enhanced protection. That is important because any future Government could easily use secondary legislation contained in a variety of past and future Acts of Parliament to chip away at rights, entitlements, protections and standards that the public enjoy and wish to retain.
In the interests of brevity, let me illustrate the risks posed if we do not pass new clause 58 or a similar new clause, by focusing on employment entitlement, rights and protection. As hon. Members will know, a substantial part of UK employment rights is derived from EU law, and an even larger body is guaranteed by EU law. As such, key workers’ rights enjoy a form of enhanced protection. Those include protections against discrimination owing to sex, pregnancy, race, disability, religion and belief, age, and sexual orientation; equal pay between men and women for work of equal value; health and safety protection for pregnant women, and their rights to maternity leave; a degree of equal treatment, in broad terms, for the growing number of fixed-term, part-time and agency workers; rights to protected terms and conditions, and rights not to be dismissed on the transfer of an undertaking; and almost all the law on working time, including paid annual leave and limits on daily and weekly working time.
Whether it is the working time regulations guaranteeing rights to holiday pay and protections from excessive working hours, which will be preserved via clause 2 of this Bill, or the right to equal pay contained in article 157 of the treaty on the functioning of the European Union, which will presumably be preserved via clause 4, these rights will not enjoy enhanced protection after exit day and will be at risk of amendment from regulations set out in other Acts of Parliament if this new clause or a similar one is not passed.
Now, it is true the Government have promised to ensure that workers’ rights are fully protected and maintained after the UK’s departure from the EU, but in the absence of stronger legal safeguards, there are good reasons to be sceptical about that commitment.
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