Government defines non-regression commitment for workers’ rights

The Government has promised on a number of occasions to “not only protect but to enhance workers’ rights” after Brexit. Last week, it published some draft clauses which set out exactly what rights it is talking about and what degree of protection it aims to give.

The Government plans to include these clauses in the Withdrawal Agreement Bill. This is the legislation that will give effect to the Withdrawal Agreement with the EU, if and when MPs finally approve a deal. It is currently unclear whether the Government will adopt similar measures if there is a no-deal Brexit.

The draft clauses tackle two scenarios which could lead to the UK being left behind on EU-derived workers’ rights. The first scenario is where domestic legislation is passed after Brexit which could water down these rights. The second is where the EU brings into effect new employment protections which would result in employment rights in the UK diverging from those available to workers in the EU.

To provide a safeguard against the first scenario, the Government would be obliged to follow a set procedure before the second reading of any Bill that relates to workers’ rights. That would involve publishing either a non-regression statement, or, where this cannot be given, a statement that the Government still intends to proceed with the legislation. This non-regression statement applies only to “pre-exit EU workers’ rights”. This expression is defined as the rights under an itemised list of EU directives, to the extent that these have been incorporated into UK law at the point of Brexit. The final list of directives has not yet been published, but the draft list includes most (but not all) EU legislation relating to workers’ rights and health and safety.

Safeguards against divergence of workers’ rights because of new EU legislation would be provided by a series of regular reports to Parliament after Brexit. Where new EU legislation has been published in the reporting period, a Minister would be required either make a statement of non-divergence, or to explain what the Government is proposing to do about any divergence that has been identified. These statements would have to be approved by both Houses of Parliament.

In both these scenarios the Government would normally be required to consult with workers’ and employers’ representatives and with “any other persons whom the Secretary of State considers it appropriate to consult.” before reporting to Parliament.

At the time of writing Parliamentary approval of a withdrawal agreement seems far from certain, not to mention finalising the legislation to give it effect. However these proposals are of current interest for three main reasons:

• They are the Government’s first attempt to define exactly what workplace rights will be entrenched after Brexit.
• The approach taken may be a template for similar non-regression guarantees that the Government has offered in other areas of law – eg environmental standards.
• They illustrate how relatively weak these safeguards are, when compared to continued membership of the EU, or entrenching the relevant rights in an international treaty (as may happen in the case of workers’ rights when the terms of the UK’s future trading relationship with the EU are agreed).