Peter Webster – Risky Business: Why the Great Repeal Bill spells uncertainty for the security industry

Peter Webster - Chief Executive of Corps Security
Peter Webster – Chief Executive of Corps Security

Peter Webster, chief executive of Corps Security, a regular blogger, discusses the Great Repeal Bill in his latest blog. Peter writes: “Any business needs certainty in the markets it operates in.  Indeed, one of the main responsibilities of Company Directors is to identify, assess and mitigate the external and internal risks to the business.  At the moment, those running manned guarding companies should be very concerned about the announcement of the Great Repeal Bill and the uncertainty it creates for our industry.

“The Great Repeal Bill allows the Government to make an estimated 1,000 changes to European Union (EU) legislation, and is necessitated by the results of the referendum on 23rd June last year.  Importantly, the Bill will allow the Government to make these sweeping changes through “secondary legislation” which allows it to avoid the direct scrutiny of Parliament. This will be achieved by invoking powerful, so-called “Henry VIII” discretions, named after the Tudor King’s “Proclamation by the Crown Act of 1539”. A proclamation which I note, with some irony, disentangled England from the continent at the time !!…

“The Government claims these powers are required because a massive amount of legislation must be passed in a very short time, compounded by the fact that the precise terms of the UK’s deal with the EU will remain unknown by the time the 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, in so doing making any deal with the EU difficult – simply impossible.

“Firstly, in considering the Great Repeal Bill and what it might mean for the manned guarding industry, I ask that we put aside the Leave / Remain arguments about Brexit.  I have addressed the issue previously and it’s obvious that, whatever your side of the argument, Brexit is now going ahead. The best possible deal must now be sought for the UK and Europe, and this is in everyone’s interests.

An unstoppable force
“The issue with the Great Repeal Bill is that, despite assurances that it will be used correctly, it hands considerable power to the Government.  As former Lord Chief Justice, Lord Judge, said last year:

“Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive. Is that what we want?”

“These ‘Henry VIII’ powers effectively eliminate the checks and balances that a bill’s usual passage through Parliament is subject to.  Indeed, as I understand it Parliament is effectively excluded from the legislative process, even though acts of Parliament themselves may be repealed under these clauses.  Noting the wide powers provided, the Select Committee on the Constitution’s comments in March 2017, point 3.1.3 of the Great Repeal Bill White Paper makes it clear that:

…The Committee also reflected that “it is unrealistic to assume that Parliament will be able to tightly limit the delegated powers granted under the Bill”, because to do so would unduly constrain the Government’s ability to adapt converted EU law to fit the UK’s post-exit circumstances.

“What’s there to worry about, you may ask? 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.

Carte blanche for change
“In principle, of course, the measure is fine.  As a mechanism to transfer any legislation into UK law the Bill is to be welcomed. And, as the White Paper on the Bill again makes clear:

“The Government is mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed.”

“Yet the devil is in the detail. The Secretary of State for Exiting the European Union, David Davis MP, recently told Sky News that there were areas of EU law that needed to be “put right”:

“We won’t want to change everything,” he said. “There are lots of parts of EU law that we approve of, that are good, but there will be some things we want to put right.”

“Vague reassurances aside, the powers granted to the Government will allow it to amend legislation to suit its own political purpose.  Now, there is perhaps a perception that UK companies are constrained by red tape; a position I disagree with to an extent, as much of our red tape is most definitely UK-originated.  I’m not saying that there aren’t pieces of EU legislation that strike me as unnecessary – I have discussed the Energy Savings Opportunity Scheme elsewhere, for example.

“But the risk with the powers as granted is that they allow the Government to alter legislation according to its own political agenda: to satisfy the far right of its party, for example, which would no doubt welcome greater deregulation across the board.  An indicator of the pressure that the Government might find itself subjected is to be found in the question put to David Davis by Christchurch MP, Chris Chope, on 30th March:

“Can I thank my right honourable friend for making it clear that two years from today our sovereign Parliament will indeed have the power to amend, repeal or improve all this ghastly EU legislation?”

Closer to home
“What does this all mean for the security industry per se, though, I hear you ask? Well, as an industry employing well over 300,000 licensed individuals, we need to be making our voice heard in Government circles so we can make sure that any attempt to amend or revoke EU regulations as they pass across into UK law do not harm our industry.

“Take TUPE, for example.  If the Government wiped it off the books the effects could be disastrous.  Every single company in our industry traditionally TUPEs staff from one contract 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 that they simply would not have allowed for.  This would have huge financial implications for those in our industry and other labour intensive industries such as cleaning and catering.

“Ah, but the “the Government won’t do that”, you may say.  If I were cynical by nature I might point out that the removal of TUPE would allow the Government to outsource many of its own, existing functions at lower cost. That this would be solely to the benefit of the Top 5 contractors for whom public sector tenders seem to consistently favour would simply add to my unease.

“Never mind the industrial unrest and worry for workers created by an erosion of the rights that workers currently enjoy: we would return to the bad old days where any company that pays the lowest wages wins the contract.  As TUC General Secretary Frances O’Grady commented:

“The Government proposes handing the power to change important rights and protections at work that British workers already have to judges. This means that important rules to protect workers could be overturned, without the UK Parliament having any say. The protections affected could include your rights to full holiday pay, equal pay for women, stopping indirect discrimination because of your race or gender, and help for workers when they are outsourced to a new boss.

Speak now – or forever hold your peace
“As an industry we are highly exposed to the risk of regulatory changes and the uncertainty created by the Bill should be a worry for us all.  On a practical level, Company Directors have a responsibility to manage and quantify risk – but we simply cannot quantify it at the moment.

“What we can do, however, is take action to keep the Government informed about the dire consequences from any potential, regulatory ‘bonfire’.  Perhaps we should consider a joint initiative with other industries for whom the removal of legalisation like TUPE would be a disaster, namely catering and cleaning companies. Between us we must employ at least a million people in the UK and so should be listened to.

“Indeed, joining up with others may make sense because, as it stands, our industry has no effective lobbying capability to speak of.  As such, we all need to “wake up and smell the coffee”.  It’s no good crying afterwards that we have millions of pounds of financial responsibility that was unaccounted for.  We must take action now!”

Corps Security Website