Withdrawal Agreement Bill: Protection for workers’ rights

Daniel Ferguson

This Insight refers to the previous European Union (Withdrawal Agreement) Bill (October 2019). It does not relate to the bill presented to Parliament on 19 December 2019. Readers should be aware that there are significant differences between the two bills.

The European Union (Withdrawal Agreement) Bill 2019-20 (the ‘WAB’) was published on 21 October 2019. Clause 34 and Schedule 4 of the Bill set out “protections for workers’ rights”. The clauses are largely identical to draft clauses published by the May Government in March 2019.

This Insight provides an overview of what Clause 34 and Schedule 4 mean for EU-derived workers’ rights after Brexit.

The level playing field

The Protocol on Ireland/Northern Ireland in the November 2018 Withdrawal Agreement contained level playing field provision that would have prevented the UK from regressing below employment standards set by EU law as at the end of the transition period.

During the first ‘meaningful vote’ in January 2019, John Mann MP and a number of others tabled an amendment to the motion approving the Withdrawal Agreement. The amendment added words to the effect that the Government should invite Parliament to consider any new workers’ rights adopted by the EU post-Brexit. The amendment, although not selected for debate, was accepted by the Government and then Prime Minister, Theresa May, subsequently committed to legislate to this effect. Draft clauses were published on 6 March 2019.

On 17 October 2019, the Johnson Government published a revised Withdrawal Agreement. The Protocol on Ireland/Northern Ireland no longer contains level playing field provisions on employment standards. Commitments to a level playing field remain in the non-binding revised Political Declaration. In an interview with ITV on 18 October, Boris Johnson committed to include protections for workers in the WAB.

What do clause 34 and Schedule 4 do?

Clause 34 will insert a new section 18A and Schedule 5A into the European Union (Withdrawal) Act 2018 (EUWA). The new section 18A will give effect to the new Schedule 5A. The new Schedule 5A is contained in Schedule 4 of the Bill. The commentary below refers to Schedule 5A.

Unlike many other parts of the WAB, clause 34 and Schedule 4 do not implement provisions of the Withdrawal Agreement. They will come into effect on a day to be specified by the Business Secretary.

Workers’ retained EU rights

Schedule 5A Part 1 will require any Minister introducing a Bill to make a statement before second reading saying that the Bill will not result in the laws of England, Wales or Scotland failing to confer “workers’ retained EU rights” (employment law is devolved in Northern Ireland). This is referred to in the Bill as a “statement of non-regression”. Alternatively, the Minister can make a statement to the effect that, although a statement of non-regression cannot be made, the Government wishes the House to proceed with the Bill. Prior to making the statement, the Minister must consult with representatives of workers and employers.

This new requirement has similarities with the requirement to make a statement of compatibility under section 19 of the Human Rights Act 1998.

The duty to make a statement will only apply to Government Bills. It will not apply to Private Members Bills or Statutory Instruments.

“Workers’ retained EU rights” are defined in Schedule 5A Part 3. They are rights which:

a. before the end of the transition period, the UK was obliged to confer by one of the listed EU directives; and

b. after the end of the transition period, continue to have effect by virtue of EUWA (i.e. they form part of retained EU law).

Paragraph 4(1) contains a comprehensive list of EU workers’ rights directives. There are a number of omissions, including:

Insolvency Directive (2008/94/EC)
Directive on Equal Treatment between Men and Women in Self-Employment (2010/41/EU)

Also currently omitted are directives that have entered into force but whose implementation deadlines have not yet passed. These include:

Directive on posting workers in the framework for services ((EU) 2018/957)
Directive on transparent and predictable working conditions ((EU) 2019/1152)
Directive on work-life balance for parents and carers ((EU) 2019/1158)

The EU may also publish new directives during the transition period (such as the proposed directive on whistleblowing).

Under paragraph 4(2), the Business Secretary will be able to make regulations to modify the list of Directives. This will enable her to reflect any changes in EU law that occur before the end of the transition period.

New EU workers’ rights

Schedule 5A Part 2 will require the Business Secretary to lay reports before Parliament at the end of each “reporting period”. The reports must state whether any new EU workers’ rights have been published during that period. If they have, the report must state whether the laws of England, Wales and Scotland confer rights of the same kind and, if not, whether the Government intends to take any steps to implement the new EU workers’ rights.

When producing the report, the Secretary of State must consult with representatives of employers and workers. Within 28 sitting days of the report being laid, she must make arrangements for motions to be moved in both Houses approving the Government’s report.

Paragraphs 2(7) and (8) will define the length of the reporting periods. The first report will have to be laid six months after the end of the transition period. After that, the reporting period will be a maximum of 12 months, although it can be shorter depending on whether new workers’ rights are published by the EU.

“New EU workers’ rights” are defined in Schedule 5A Part 3 as workers’ rights which EU Member States are obliged to confer by a directive or regulation published in the Official Journal of the EU after the end of the transition period.

Should Parliament choose, in the future, to legislate to keep pace with new EU workers’ rights, it would need to decide how such legislation would interact with the broader framework of EU law. Under the European Union (Withdrawal) Act 2018 (as amended by the WAB) decisions of the European Court of Justice made after the end of the transition period will not binding on UK courts. The EU Charter of Fundamental Rights will also not form part of retained EU law.

Reactions to the May Government’s draft clauses on workers’ rights

When the draft clauses were published by the May Government in March 2019, they were debated in the House of Commons. Rebecca Long-Bailey MP, the Shadow Business Secretary, criticised the fact that statements of non-regression under Part 1 could not be challenged in a court. She also expressed concern that secondary legislation could be used to amend workers’ retained EU rights without triggering the duty to make a statement of non-regression.

The TUC expressed concern that the legislative protections could be repealed by a future Government. Commenting on this point, Raphael Hogarth, a Research Associate at the Institute for Government, wrote that the only way to achieve “cast iron” protection for workers’ rights would be to enshrine such commitments in an international treaty.

The Independent Workers’ Union of Great Britain obtained a legal opinion on the effects of the draft clauses from Aidan O’Neill QC, a barrister at Matrix Chambers. He concluded that:

“In the absence of any continuing jurisdiction of the [ECJ] on UK law after Brexit, and standing the fact that workers’ rights can longer be entrenched against adverse decision of the national authorities, it seems inevitable that the level of protection for workers’ rights in the UK will decline as compared to the level of protections which will be maintained in the EU.”

The level playing field

What do clause 34 and Schedule 4 do?

Workers’ retained EU rights

New EU workers’ rights

Reactions to the May Government’s draft clauses on workers’ rights

Further reading