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No cast-iron guarantees on the future of workers’ rights

KEITH EWING and JOHN HENDY look at how the PM’s proposals might affect employment rights in the post-Brexit period

THE Guardian reported on Tuesday that the Prime Minister is thinking about a legally binding commitment to protect workers’ rights after Brexit.  

The report does not say what workers’ rights are involved, though it is assumed that what is being proposed relates only to those rights that currently operate in this country as a result of existing EU obligations.   

The rights in question include those relating to redundancy consultation, paid holidays and protection for agency workers.

As matters currently stand, after Brexit these and other measures will continue to operate in this country, with two major qualifications.  

First, it will not be possible to refer any disputes about their meaning to the Court of Justice of the EU (CJEU), which has been important in the past to expand the protection of the rights concerned.

Despite claims to the contrary, the UK does not “gold-plate” EU law and CJEU intervention has been necessary to remove gratuitous restrictions on rights imposed by the Westminster government.

Second, it will be possible for any government in the future to bring forward legislation to remove any of the EU laws on workers’ rights currently applying here.  

That is what Brexit means. It is about restoring the sovereignty of Parliament. There are no restrictions on what Parliament may now do on workers’ rights or indeed on any other EU law.   

While we might hope that a progressive government will expand workers’ rights beyond the EU minimum, there is equally a danger that a reactionary government will reduce them.

The Prime Minister has promised, however, that there will be no regression on workers’ rights, which means that existing rights will be preserved: a floor rather than a ceiling.  

That, however, is worthless — it is a political promise with no binding legal effects.

At best it commits the person who made it, but has no binding effect whatsoever on her successors, and provides no assurance to those Labour MPs hoping to extract a guarantee on workers’ rights as the price of agreeing the PM’s deal for leaving the EU.   

Which brings us to The Guardian report that the Prime Minister is considering “legislating to ensure her commitments on workers’ rights had legal force.”   

There seems to be some dispute about whether this guarantee should be in the form of an amendment to an existing Bill or in a stand-alone Bill, as some MPs are reported to be demanding.   

This, however, may be simply a presentational issue, which will not be a substitute for a lack of legal force in the undertaking itself, in whatever kind of Bill it appears.

According to reports, what is being proposed is, first, that these statutory commitments “should include a ‘regression lock’ to ensure UK standards did not slip below those of the EU,” and, second, “opportunities for MPs to vote on raising UK standards when future EU laws are implemented.”  

The government is apparently “prepared to commit to asking Parliament whether it wishes to follow suit whenever the EU changes its standards in these areas.”

These proposals of course beg many questions. What is meant by non-regression? Does it mean non-regression from standards as they are now? Or non-regression from existing obligations as interpreted by the CJEU?   

If the latter, does that mean the EU (Withdrawal) Act 2018 would have to be amended so that future CJEU decisions will be binding on the domestic courts?   

If it does not mean this then there would be no non-regression if British courts lagged behind the CJEU on workers’ rights issues.  

And what is the purpose of asking Parliament if it wishes to adopt any new EU law whenever any such EU law is made? It may be a good idea, but it does not guarantee that any new EU laws will be accepted.

Nor could Parliament be bound to accept any such EU law. The matter could no doubt be raised, but when the dust settles on Brexit what are the chances of Tory MPs voting to endorse such rights, were we to have the misfortune of a Tory government?

As matters stand, neither a commitment to non-regression nor to future consideration of adopting new EU laws has any binding legal effects, even if written into an Act of Parliament.  

The principle of parliamentary sovereignty on which the referendum was fought means that any EU-sourced law can be changed at any time, and that we cannot be bound by any new EU law made in the future. This is Constitutional Law 101, a simple constitutional fact that first-year law students grasp very quickly.

This is not to deny that there is a compelling case for a strong dynamic non-regression clause (embracing the case-law of the CJEU as well as the bald text of future EU directives protecting worker rights).

Nor is to deny that there is a strong case for saying that the UK should keep up with any progressive changes to EU law, should they occur.   

That said, it might be hoped that a progressive Jeremy Corbyn-led Labour government would go well beyond the EU in rebuilding workers’ rights, challenging the EU to keep up with the UK.

But in the context of life after Brexit, the Prime Minister is not offering very much.  

The only legally effective way to ensure non-regression and a commitment to follow further EU improvements to workers’ rights would be if there were a legally binding commitment to this effect in the Treaty establishing the future relationship between the EU and the UK. 

If the Prime Minister’s proposals are a step in that direction, they would be worth thinking about. Otherwise, they offer only false security.

Keith Ewing is professor of public law at King’s College London and president of the Institute of Employment Rights (IER). John Hendy is a barrister at Old Square Chambers, London, and chair of the IER.

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