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The Brexit agreement and workers’ rights

NICOLA COUNTOURIS, KD EWING and LORD HENDY QC of the Institute of Employment Rights give their expert take on the implications of the Brexit deal for the labour movement

JUST short of one half of the entire population of the UK are workers — and most of the rest are dependent on workers’ wages. Workers’ rights are therefore crucial. 

The Labour Party was created at the beginning of the 20th century with a mandate to protect worker and trade union rights.   

Under new leadership the Labour Party of the 21st century is about to vote in support of Boris Johnson’s post-Brexit Trade and Co-operation Agreement (TCA), an agreement that, by the new leader’s own admission, does not “underpin workers’ rights.” 

Labour parliamentarians who vote with the Tories to support the TCA should do so fully aware of its implications for workers’ rights. 

The fact that the government has deliberately engineered a situation in which it appears that a no-deal Brexit is the only alternative to the TCA is no reason not to vote against it.

An extension of current arrangements in order to procure a better deal was always possible.

EU workers’ rights are by no means comprehensive. But they are significant, on health and safety, equality and discrimination, paid holidays, working time and so on. Regression from them is therefore dangerous. 

Though the European Court of Justice has an appalling record on the right to strike and bargain collectively, Brexit reminds us that UK legislation on these collective rights can be even worse.

In 2019, the Institute of Employment Rights raised concerns about workers’ rights in any future relationship with the EU.   

Not one is allayed by the TCA. True, the TCA provides that neither the EU nor the UK shall “weaken or reduce, in a manner affecting trade or investment between the parties, its labour and social levels of protection below the levels in place at the end of the transition period.”  

But this needs to be read very carefully.  

First, it does not mean no regression: it means, as the government has pointed out, no dilution of standards “in a manner that has an effect on trade or investment.” 

It will be hard to prove that reducing paid holidays or increasing the limits on workers’ exposure to dangerous chemicals will affect trade or investment.

Second, it does not mean that all existing rights are to be safeguarded in their existing form or with the same level of detailed protection.  

Backsliding would appear to be permitted by a formula that defines “labour and social levels of protection” to mean “the levels of protection provided overall” in law. 

Removal of a specific protection while reiterating a general protection is likely to be enough. 

Third, if there were doubts about the UK’s capacity to regress, Article 6.2 of Title XI of the TCA affirms “the right of each party to set its policies and priorities … to determine the labour and social levels of protection it deems appropriate and to adopt or modify its law and policies in a manner consistent with each party’s international commitments.” 

That is why the Westminster government trumpets in its summary of the TCA, specifically in the context of workers’ rights, that “retained EU law will not have a special place on the UK’s statute books.” 

This signals the government’s barely concealed intention to dilute the standards of EU workers’ rights.  

So while children will not be sent back up chimneys, the TCA enables the government, with its 80-seat majority, to modify the detailed EU-derived legislation, whether it be levels of compensation in discrimination cases, or the arrangements for paid holidays. 

These are not imaginary fears. Recall the current Prime Minister’s evidence to the treasury select committee when, as foreign secretary, he said that stuff such as “the Working Time Directive, … the Data Protection Act, … many directives and regulations emanating from Brussels have, either through gold-plating in this country or simply because of poor drafting or whatever, been far too expensive … They are not ideally tailored to the needs of this economy.”   

It was nonsense. But now we must prepare for the removal of the “gold-plating” and for amendments to the drafting of workers’ rights.    

Such legislation may take us below the Plimsoll line in the TCA. If so, the weakness of the supervision and enforcement to prevent regression will ensure that the government will be free to act with relative impunity.   

A matter of acute concern is thus the absence of any independent judicial body to assess whether or not the non-regression provisions have been violated.

Article 6.4 of Title XI clarifies that any disagreement arising in the context labour and social provisions will not be settled in accordance with the more robust standard arbitration procedure contained elsewhere in the TCA (which applies, for instance, when a dispute revolves around the misuse of state aid and other subsidies).  

Instead, any disagreement is to be addressed but by reference to the second-rate procedures set out in Article 9 of Title XI. 

In the first instance, the provisions of the latter merely provide for consultative talks between the parties (ie the UK and the EU), and failing progress for a “panel of experts” issuing non-binding recommendations. 

If a party refuses to accept and comply with these non-binding recommendations, then Article 9.3 of Title XI allows the aggrieved party to adopt unilateral temporary measures, including the suspension of certain TCA provisions.  

Such measures are, as stated, temporary and the other party can have them reviewed by an arbitration tribunal. 

In some circumstances, under Article 9.4 of Title XI a party claiming that the other has diverged significantly in terms of its labour or social legislation, can adopt unilateral “rebalancing measures,” including tariffs.

This may appear an adequate deterrent to prevent social dumping, but as always the devil is in the detail. 

First, rebalancing measures can also be brought before an arbitration tribunal; they must also be “strictly necessary and proportionate” and “be based on reliable evidence and not merely on conjecture or remote possibility.” 

Second, the entire “dispute resolution” process lends itself to delays, unpredictable results, and substantial costs. 

For instance, in July 2019, the EU Commission requested a panel of experts to report on the alleged violation by South Korea of a number of important ILO Conventions. 

To date, the panel has yet to report on the allegations. 

Third, workers and trade unions cannot initiate these processes, and unlike a court judgement, a decision by a panel or arbitration tribunal is not directly applicable in law. 

Because of these deficiencies, experience suggests that state parties to international trade agreements usually put up with substantial levels of divergence between labour protection systems, rather than turn to cumbersome, ineffective and unpredictable dispute resolution procedures such as the TCA process.   

But given the power reserved by the government for the UK to squander by legislation the EU inheritance, the ineffectiveness of these procedures may never need to be revealed.

Let there be no doubt, in the drawn-out negotiations (and to the dismay of both Leavers and Remainers), it was the Westminster government which insisted on having the power to water down the existing rights of UK workers. That, it has achieved.


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