It is possible to protect EU workers’ rights post-Brexit, but Johnson’s plan will not do it.
EU law has set minimum standards for a wide range of workers’ rights in the UK for over forty years.
These now include discrimination on grounds of sex, race, disability, religion or belief and sexual orientation; pregnancy, maternity and parental leave rights; part-time, fixed-term and agency working rights; working time and paid holiday rights; consultation rights and health and safety rights.
It’s not just the existence of these minimum EU law standards that has been so influential. It is also the powerful means for implementing and enforcing those standards, made possible by the European Communities Act 1972.
These include extensive mechanisms by which individuals can rely on EU law minimum standards, specific requirements for enforcement procedures and for effective and dissuasive remedies, and protection of fundamental rights (including under the EU Charter of Fundamental Rights).
The European Union (Withdrawal) Act 2018 will provide for many of these standards and protections to be preserved in UK law after Brexit, in the form of “retained EU law”. The Act also provides for a modified form of the principle of supremacy of EU law to continue to apply to pre-Brexit domestic legislation.
But not everything is preserved – notable exceptions include the EU Charter of Fundamental Rights and the right to bring so-called ‘Francovich’ claims against the government. And, even then, the government has reserved extensive powers to modify what remains, and there is no restriction on the content of future legislation after exit day.
In Theresa May’s withdrawal agreement, provisions relating to labour standards were contained in the chapter on the Northern Ireland backstop providing that “the level of protection provided by law, regulations and practices is not [to be] reduced below the level provided for by the common standards applicable within the Union and the United Kingdom at the end of the transition period”.
There was also a “reaffirmed commitment” to implement ILO Conventions and the Council of Europe Social Charter’. The political declaration said that, to ensure “open and fair” competition, there should be provisions covering “social and employment standards” “commensurate with the overall economic relationship”. There was also to be a “continued commitment to respect the framework of the European Convention”.
We are no advocates for Theresa May’s totally inadequate agreement and political declaration, given the protections it claimed to offer were worthless anyway. But Boris Johnson’s proposals delete even these so-called “level playing field” provisions.
In Number 10’s words, this is to enable UK and EU standards on areas such as workers’ rights, environmental issues and medical safeguards to “diverge”. In plain English, what this really means is that Boris Johnson’s proposals contain no commitment at all to protect EU workers’ rights after Brexit, meaning that for workers these proposals are as bad as no-deal.
This is not an unintended by-product of Boris Johnson’s proposals for Northern Ireland; it is a deliberate strategy to de-couple UK workers’ rights, and other standards, from EU standards. The only logic, given the “divergence” mantra, is that the Brexiteers and free marketeers have won and this is a green light for EU workers’ rights in the UK to be systematically dismantled by a UK government.
It is not possible for UK legislation alone to prevent future governments dismantling EU workers’ rights in the UK. But it is possible, if there is the political will, to protect EU workers’ rights by binding and enforceable Treaty commitments with the EU.
Those commitments would need to include a system of ‘dynamic alignment’ to provide for the automatic replication in UK domestic law of (i) existing EU workers’ rights; (ii) new EU workers’ rights created after the UK leaves the EU; and (iii) modifications to either.
You can read Thompsons Solicitors’ ‘no-deal’ Brexit briefing in full here.
Richard Arthur is the national coordinator for trade union strategy at Thompsons Solicitors
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