Keir Starmer has famously set out his six tests that would have to be met for Labour to support an EU exit deal negotiated by the Conservative government.

The tests seek to mitigate against the assumed negative consequences of leaving the EU through calling for the preservation of a strong and collaborative relationship with the EU (test 1), the “exact same benefits” as we currently have as members of the single market and customs union (test 2) and the defence of current rights and protections (test 4).

It is notable that Labour’s support for a deal is contingent on it not diverging from the pre-exit status quo. None of the tests is framed positively, in terms of ensuring that the deal leaves the UK free to act outside the constraints and requirements of single market and customs union membership.

Starmer is only pressing the government in one direction — to stay as close to the EU as possible — and this could help the Tories to use the deal as a means of tying the hands of a future radical Labour government through the continued application of neoliberal EU-level rules and laws to the UK.

It is therefore important to set out some of the constraints on UK policy-making resulting from EU membership. Labour should be insisting that these constraints are no longer in place when the UK leaves the EU. The Tories’ deal should be assessed against the following three tests — all relating to public services and public service workers.

1. Does the deal allow the UK to decide whether workers transferred out of the public sector are covered by subsequent increases in negotiated public sector pay rates?

The European Court of Justice ruled that private employers who take on the provision of public services cannot be required to pay transferred staff the pay rises they would have had had they stayed in the employ of the public sector. This Alemo-Herron decision has had a major impact on the earnings of many thousands of outsourced public service workers. The issue of dynamic pay awards is very much a live one, and was at the heart of a recent dispute involving Unison members at Royal Bolton Hospital. The ECJ decision puts the rights of private companies to “business freedom” and not to be bound by pay agreements which they were not party to, above the rights of workers to be paid the going rate for the job — and also acts as a financial incentive to privatise more public services to save money at the expense of workers. Labour should be insisting that leaving the EU will mean that the UK is no longer subject to the Alemo-Herron decision.

2. Does the deal allow the UK government to intervene in markets?

EU state aid rules constrain national governments from giving financial assistance to some companies and not others. The rules are a reflection of the EU prioritisation of fair competition as a central objective. Fair market competition cannot be distorted, even if this means frustrating the democratic will of the public. The potential for state aid rules to affect public service workers was evident this summer, when the UK government was exploring how the costs of back pay for care workers who had been underpaid for working sleep-in shifts could be met without bankrupting their employers. The government was considering paying to meet the costs of back pay itself — a move that would have corrected a previous injustice suffered by workers that would have been likely to be supported by the public. The UK government though was reportedly constrained by concerns that such a move would be subject to state aid rules, which it would need to discuss with the European Commission.

3. Does the deal allow the UK government to de-marketise our public services?

EU membership involves pressure to open up public services to market competition. This is not always apparent in the UK, where a succession of neoliberal governments have needed little outside encouragement to pursue privatisation policies. But the RMT union views the privatisation of our railways as being rooted in EU directive 91/440 and it now despairs at the imposition of a similar privatisation model across the continent through the EUFourth Railway Package which means that train operators must have complete access to the networks of member states to operate domestic passenger services. Postal union the CWU has criticised the EU for failing to see the sector as a natural monopoly and promoting competitiveness for its own sake, resulting in “duplication, a driving down of standards and a threat to terms and conditions.” A test of the UK exit deal from the EU should be that the UK government takes control of whether sectors are open to competition or not. That must include the power to decide to close down an existing market in any sector or economic activity.

The danger with Starmer’s approach is that the Conservative government may be able to quietly negotiate away the potential benefits to working people of leaving the EU. The Tories must not be allowed to strike a deal that continues to bind in the UK to EU rules that promote the rights of private companies over the rights of workers and the principle of market competition over the principle of democracy.

This article appeared at tradeunionfutures.wordpress.com — a Morning Star supporters’ resource for the union left.