Home Opinion Does Legislative Repeal Fit the Bill?

Does Legislative Repeal Fit the Bill?

by Brian Sims
Peter Webster

Peter Webster

One of the largest legislative projects ever to be undertaken, the Great Repeal Bill will ensure that European law no longer applies in the United Kingdom. Here, Peter Webster examines why guarding companies should be concerned about the uncertainty this legislation could well create for the security industry.

One of the prerequisites of success for any company in any industry is certainty, but since the European Union (EU) Referendum of June 2016, things have been far from certain here in the UK. Whatever your side of the argument, Brexit is now going ahead and the best possible deal must be sought for the UK and Europe. This is in everyone’s interests. However, as the Government tiptoes its way towards extricating the UK from European law through the Great Repeal Bill, the guarding sector has every reason to feel nervous.

Back in March, just a day after Article 50 was invoked, David Davis (Secretary of State for Exiting the EU) published the Great Repeal Bill, which will repeal the 1972 European Communities Act. This Act took Britain into the EU and meant that European law assumed precedence over laws passed in the British Parliament. The repeal process is a gargantuan task, as there are believed to be 12,000 EU regulations in force, while Parliament has passed some 7,900 Statutory Instruments implementing EU legislation and 186 Acts incorporating at least a degree of EU influence.

It’s argued that, without the Great Repeal Bill, when the UK leaves the EU all of these rules and regulations would no longer have legal standing in the UK, creating a ‘black hole’ in our statute book. However, technical problems will arise as EU laws are put on that statute book. For instance, many EU laws mention EU institutions in which the UK will no longer participate after Brexit, or otherwise mention EU law that will not be part of the UK’s legal system.

The British Government wants to invoke controversial powers contained within King Henry VIII’s Proclamation by the Crown Act of 1539, which also helped to disentangle England from the continent at that time. These powers will give ministers and civil servants alike the authority to wade through vast amounts of EU legislation and decide which bits to keep, which to amend and which to repeal in their entirety.

Of particular note here is the fact that ministers can waive the decisions through without recourse to the House of Commons.

Cause for concern

Although David Davis argues that the Great Repeal Bill will provide “clarity and certainty” by assuring laws derived from the EU don’t “change overnight” during the Brexit process, the precise terms of the UK’s deal with the EU will remain unknown by the time the Great Repeal Bill is introduced to Parliament later this year. These practical considerations make the alternative – a slow and torturous progression of Bills through Parliament over many years – simply impossible and the creation of any deal with the EU somewhat difficult.

One significant issue with the Great Repeal Bill is that, despite assurances to the effect that it will be used correctly, it does hand considerable power to the Government. As former Lord Chief Justice Lord Judge said only last year: “Unless strictly incidental to primary legislation, every Henry VIII clause and every vague skeleton Bill is a blow to the sovereignty of Parliament. Each one is a self-inflicted blow, with each one boosting the power of the executive. Is that what we really want?”

These Henry VIII powers effectively eliminate the checks and balances to which a Bill’s usual passage through Parliament is subject. Indeed, Parliament is effectively excluded from the legislative process, even though Acts of Parliament themselves may be repealed under these clauses. Ultimately, nearly half a century of workers’ rights, Health and Safety laws, consumer protections, environmental standards and numerous other factors are now in the hands of Conservative ministers.

What’s the problem, then? These measures are needed given the huge demands placed on the Government by invoking Article 50 and setting a firm date for the UK to exit the EU. In principle, of course, the measure is fine. As a mechanism to transfer any legislation into UK law the Great Repeal Bill is to be welcomed, but the Government should be mindful of the need to ensure that the right balance is struck between the requirement for scrutiny and the necessity for speed.

The devil is in the detail. David Davis told Sky News there are areas of EU law that need to be “put right”, while also stating that: “There are lots of parts of EU law of which we approve.”

There’s a perception that UK companies are constrained by red tape and, while most businesses will appreciate there being much less of it, the risk with the powers as granted is that they allow the Government to alter legislation according to its own political agenda. For example, the far right of the Conservative Party would no doubt welcome greater deregulation right across the board.

Safe from harm

What does all of this mean for the security business sector, though? As an industry employing well over 300,000 licensed individuals, the security sector needs to be making its voice heard in Government circles and ensure that any attempt to amend or revoke EU regulations as they pass across into UK law doesn’t do it harm.

Take the Transfer of Undertakings (Protection of Employment) Regulations – better known as TUPE – as an example. These are designed to protect employment rights when employees transfer from one business to another. If the Government chose to wipe TUPE from the statute books the effects could be disastrous. Every single security guarding company traditionally ‘TUPEs’ staff from one job to another at the end of a contract. Removal of TUPE would give them a potentially massive redundancy liability at the end of each contract – one for which they simply wouldn’t have allowed. This would have huge financial implications for those in our industry, not to mention other labour intensive sectors such as cleaning and catering.

The cynical among us might consider that the removal of TUPE would allow the Government to outsource many of its existing functions at lower cost. If this were to happen, it would be solely to the benefit of the bigger contractors (who are seemingly favoured for public sector tenders on a consistent basis) and simply add to a more uneven playing field.

Then there’s the potential for industrial unrest and additional worry for workers created by an erosion of the rights that they currently enjoy. We could soon return to the bad old days wherein any company that pays the lowest wages wins the contract.

What’s more, by giving the power to change important rights and protections for workers to Judges, vital rules to protect workers could be overturned without Parliament having any say. This might include areas such as holiday pay and equal pay, as well as direct and indirect racial and gender discrimination.

The security industry is highly exposed to regulatory change and the uncertainty created by the Great Repeal Bill should be a worry.

On a practical day-to-day level, company directors have a responsibility to manage and quantify risk, but the risks here cannot be quantified at the moment and, as a direct result, leaves those in such important positions of leadership pretty vulnerable.

Joined-up thinking

What the security industry can – and must – do is take action to keep the Government informed about the dire consequences that might result from any potential regulatory ‘bonfire’.

One way in which to do this is to consider a joint initiative with other industries for which the removal of legislation like TUPE would be a disaster. Joining forces with others would make a great deal of sense because, as things stand, the security industry has no effective lobbying capability to speak of.

Put simply, if the worse case scenario does materialise and security guarding companies end up with millions of pounds’ worth of financial responsibility unaccounted for, the sector will wish it had made its voice heard. Come that particular point in time, though, it will be far too late in the day.

Peter Webster is CEO of Corps Security

*The author of Risk UK’s regular column Security’s VERTEX Voice is Peter Webster, CEO of Corps Security. This is the space where Peter examines current and often key-critical issues directly affecting the security industry. The thoughts and opinions expressed here are intended to generate debate among practitioners within the professional security and risk management sectors. Whether you agree or disagree with the views outlined, or would like to make comment, do let us know (e-mail: pwebster@corpssecurity.co.uk or brian.sims@risk-uk.com)


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