In September 1988, two now famous speeches set out competing visions for the United Kingdom’s role in Europe and Europe’s role in the UK. In the first, European Commission President Jacques Delors addressed the UK’s Trade Union Congress, pitching the European Economic Community on the basis of a role for workers’ rights and collective bargaining, saying: “The internal market should be designed to benefit each and every citizen of the community. It is, therefore, necessary to improve workers’ living and working conditions, and to provide better protection for their health and safety at work.”
Thirteen days later, Conservative Prime Minister Margaret Thatcher addressed the College of Europe in Bruges, Belgium. Alluding to the Eurosceptic reputation which preceded her, Thatcher commented to laughter from the audience: “If you believe some of the things said and written about my views on Europe, it must seem rather like inviting Genghis Khan to speak on the virtues of peaceful coexistence.” Indeed, her vision would have made Genghis proud.
In Thatcher’s view, Europe consisted of sovereign nations sharing a common experience, “for instance, the story of how Europeans explored, and colonised, and – yes, without apology – civilised much of the world, is an extraordinary tale of talent, skill, and courage”. For her, Europe was a free-market project in which there should be no place for “new regulations which raise the cost of employment and make Europe’s labour market less flexible and less competitive with overseas suppliers”.
In the three decades since these speeches, successive Conservative governments have attacked the UK’s workers’ rights regime and trade unions. From dismantling sectoral collective bargaining, to making it harder to claim unfair dismissal, to introducing employment tribunal fees (later struck down by the Supreme Court), to regulating to near-death the ability of workers to strike, the Tory onslaught has been wide-ranging and deep.
The quest is intensely ideological, with Matt Hancock, the current health secretary, even admitting to getting into politics to combat “the over-burdensome intervention of health and safety officers”. Workers’ rights which come from EU law, however – such as the right to paid holidays, protection from discrimination and protection against less favourable treatment for part-time workers, among others – have largely been spared.
What made EU law rights so useful to workers was what provoked the ire of the Tories: the rights could not be removed by a UK government, they were ultimately interpreted by a court in Luxembourg which tended to interpret them more expansively than UK courts, and in a conflict with UK law, EU law prevailed. Under the Brexit deal just agreed between the UK and EU, that has now ended.
In the final days of Brexit negotiations, the so-called “level playing field” – designed to ensure the UK did not deregulate its way to a competitive advantage – was one of the last sticking points. For this reason, the deal contains a “non-regression clause” which requires the UK not to reduce workers’ rights below their current level, “in a manner affecting trade or investment between the Parties”. The purpose of labour rights in the deal, therefore, is transformed from the protection of UK workers to the protection of European profits.
If the UK breaches the provision, the EU can take the matter to arbitration and can ultimately temporarily suspend its obligations under the agreement, for example by imposing tariffs on imported goods, until the issue has been resolved. However, the EU could not impose tariffs at a rate higher than that necessary to rectify the distortions caused by the undercutting.
The Brexit deal also provides for a scenario in which the UK’s failure over time to improve its labour rights at the same pace as the EU leads to a competitive advantage. In that case, the EU can again suspend parts of the agreement. But the threshold is high: the divergence in standards needs to be “significant”, the impact on trade and investment “material” and “based on reliable evidence and not merely on conjecture or remote possibility”, and the countermeasures taken need to be no more than “what is strictly necessary and proportionate in order to remedy the situation”, all of which is subject to arbitration.
As the self-styled “star chamber” of legal experts for the hard-right Tory Brexit ideologues of the “European Research Group” put it in their statement approving the deal: “We think as long as a UK government is willing to be robust and to defend with vigour any arbitration proceedings launched by the EU, then the rebalancing mechanism is less likely to give rise to a serious, effective constraint on practical UK sovereignty to revise our own laws in these fields.”
Finally, in the area of workers’ rights, the deal says that both sides must uphold international labour standards such as those found in International Labour Organization (ILO) conventions, concerning such things as trade union rights, health and safety, and sick pay, among others. It is difficult to take these provisions seriously. The UK has a notoriously bad track record in upholding ILO conventions. For example, in its 2017 report, the ILO’s Committee of Experts – a supervisory body – held the UK to be in breach of a social security convention due to its abysmally low levels of sick pay.
The UK’s refusal to implement the convention which it had ratified was wilful; as the committee stated, the UK “expresses no intention to comply with the United Kingdom’s obligation to maintain social security benefits at least at the minimum level guaranteed by these international instruments”. It is inconceivable that the EU is unaware of the UK’s track record on international labour standards. The fact that this section of the deal does not provide for countermeasures to be taken in the event of a breach further suggests the provision is little more than fluff.
However, the weak level playing field provisions do not give the Tories complete free reign when it comes to workers’ rights, for there still remains the European Convention on Human Rights, which is separate from EU law. Similar to EU law though, the convention has been implemented in the UK – via the Human Rights Act – in such a way that allows UK judges to extend domestic legislation when necessary to give effect to convention rights.
For example, the convention has extended whistleblowing rights to judges and trade union consultation rights to parks constables when domestic law had failed to provide the same. It is, therefore, no surprise that the convention has similarly provoked Tory ire in recent years, with successive Tory manifestos promising to repeal, curtail, or otherwise modify the Human Rights Act. Indeed, Prime Minister Boris Johnson recently announced a review of the Human Rights Act, with a particular focus on “whether the current approach risks domestic courts being unduly drawn into questions of policy”.
With a pandemic raging out of control, workers’ rights are crucial not only to those key workers who continue to keep the country functioning, but also to the rest of society. For example, enhancing sick pay would make it easier for low-paid workers to self-isolate when necessary. Similarly, increasing health and safety law enforcement would reduce the spread of the virus in workplaces, where people are still allowed to congregate.
Now is the time to improve workers’ rights and their enforcement. Instead, this Brexit deal does the precise opposite, giving the Tories even more freedom to undermine labour rights in the UK.