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May’s Brexit deal quietly gambles with our rights at work May’s Brexit deal quietly gambles with our rights at work
(about 2 months later)
Of the various ways in which Brexit represents a threat to workers’ rights, the loss of EU employment law is one of the gravest. EU law – which covers everything from discrimination at work to equal pay and paid holidays – is important not just because in some cases it introduces rights that didn’t previously exist, but also because in effect it supersedes domestic law, and is subject to a European court that, on the whole, interprets the law more favourably for workers than British courts do.Of the various ways in which Brexit represents a threat to workers’ rights, the loss of EU employment law is one of the gravest. EU law – which covers everything from discrimination at work to equal pay and paid holidays – is important not just because in some cases it introduces rights that didn’t previously exist, but also because in effect it supersedes domestic law, and is subject to a European court that, on the whole, interprets the law more favourably for workers than British courts do.
And unless done through EU structures, a rightwing majority in the UK will currently struggle to remove EU legal rights, notwithstanding their ardent desire to cut all that red tape. In recognition of the protections EU law provides at work, the prime minister has previously promised that these wouldn’t be lost as a result of Brexit. And yet, despite all the heated rhetoric and pontification about Theresa May’s Brexit deal, not much has been said about its implications for workers’ rights.And unless done through EU structures, a rightwing majority in the UK will currently struggle to remove EU legal rights, notwithstanding their ardent desire to cut all that red tape. In recognition of the protections EU law provides at work, the prime minister has previously promised that these wouldn’t be lost as a result of Brexit. And yet, despite all the heated rhetoric and pontification about Theresa May’s Brexit deal, not much has been said about its implications for workers’ rights.
The lack of detail in the employment law sections stand in stark contrast to other areas of the agreementThe lack of detail in the employment law sections stand in stark contrast to other areas of the agreement
According to the deal, when it leaves the EU the UK will enter into a transition period during which pretty much everything will remain the same. This goes for workers’ rights as well. After the transition period one of two things will happen. Either we enter into the backstop arrangements designed to prevent a hard border on the island of Ireland or we enter into a new arrangement with the EU that has not yet been negotiated (the hope being that the next stage of negotiation will be more productive than the last).According to the deal, when it leaves the EU the UK will enter into a transition period during which pretty much everything will remain the same. This goes for workers’ rights as well. After the transition period one of two things will happen. Either we enter into the backstop arrangements designed to prevent a hard border on the island of Ireland or we enter into a new arrangement with the EU that has not yet been negotiated (the hope being that the next stage of negotiation will be more productive than the last).
The backstop arrangements – contained in the legally binding withdrawal agreement – do state that the UK will continue to give effect to the anti-discrimination directives in Northern Ireland. And shoved into eight short paragraphs is the UK’s commitment to not reduce employment rights below those in place in the EU at the end of the transition period, protect and promote social dialogue on labour matters, and implement International Labour Organisation conventions and provisions of the European social charter.The backstop arrangements – contained in the legally binding withdrawal agreement – do state that the UK will continue to give effect to the anti-discrimination directives in Northern Ireland. And shoved into eight short paragraphs is the UK’s commitment to not reduce employment rights below those in place in the EU at the end of the transition period, protect and promote social dialogue on labour matters, and implement International Labour Organisation conventions and provisions of the European social charter.
On the face of it, these eight paragraphs sound great. But they appear to be unenforceable. For whatever reason, the interpretation of these rights is excluded from the jurisdiction of the Court of Justice of the European Union (CJEU), and disputes about these provisions are excluded from the binding arbitration that governs most of the rest of the withdrawal agreement.On the face of it, these eight paragraphs sound great. But they appear to be unenforceable. For whatever reason, the interpretation of these rights is excluded from the jurisdiction of the Court of Justice of the European Union (CJEU), and disputes about these provisions are excluded from the binding arbitration that governs most of the rest of the withdrawal agreement.
The UK does commit to have an effective system of labour law enforcement (which it doesn’t currently), but it’s unclear how much that helps workers’ rights when it comes to maintaining EU employment law, given the unenforceability of the commitment to maintain that law.The UK does commit to have an effective system of labour law enforcement (which it doesn’t currently), but it’s unclear how much that helps workers’ rights when it comes to maintaining EU employment law, given the unenforceability of the commitment to maintain that law.
The lack of detail and the weak enforcement provisions of the employment law sections stand in stark contrast to other areas of the agreement. For instance, the 89 pages of EU law, which will continue to be binding in Northern Ireland, regulating everything from imports of US maize starch residues to trade in deep-frozen cow semen, all of which is subject to the jurisdiction of the CJEU.The lack of detail and the weak enforcement provisions of the employment law sections stand in stark contrast to other areas of the agreement. For instance, the 89 pages of EU law, which will continue to be binding in Northern Ireland, regulating everything from imports of US maize starch residues to trade in deep-frozen cow semen, all of which is subject to the jurisdiction of the CJEU.
The backstop also has nothing to say about future EU employment law rights. But more importantly, the backstop is not even supposed to take effect as the intention of both sides is to negotiate a different deal to replace it before the end of the transition. As is characteristic of so much of the Brexit process, the workers’ rights provisions in the backstop are a gamble, the real effect of which is not entirely known, which will certainly fall short of the status quo and even farther short of the ideal.The backstop also has nothing to say about future EU employment law rights. But more importantly, the backstop is not even supposed to take effect as the intention of both sides is to negotiate a different deal to replace it before the end of the transition. As is characteristic of so much of the Brexit process, the workers’ rights provisions in the backstop are a gamble, the real effect of which is not entirely known, which will certainly fall short of the status quo and even farther short of the ideal.
The alternative to the backstop is the new arrangement, which is based on the non-legally binding political declaration. While we would expect at least an 80-page manifesto from a political party proposing a five-year plan of government, May is attempting to outline indefinite future UK trade relations, foreign policy and security arrangements, and legal and constitutional structures in fewer than 26 pages.The alternative to the backstop is the new arrangement, which is based on the non-legally binding political declaration. While we would expect at least an 80-page manifesto from a political party proposing a five-year plan of government, May is attempting to outline indefinite future UK trade relations, foreign policy and security arrangements, and legal and constitutional structures in fewer than 26 pages.
Unsurprisingly, the document has little to say about workers’ rights. It does state that the parties should ensure a level playing field by building on the provisions in the backstop arrangement “commensurate with the overall economic relationship”. It further states that the parties “should consider the precise nature of commitment in relevant areas, having regard to the scope and depth of the future relationship”.Unsurprisingly, the document has little to say about workers’ rights. It does state that the parties should ensure a level playing field by building on the provisions in the backstop arrangement “commensurate with the overall economic relationship”. It further states that the parties “should consider the precise nature of commitment in relevant areas, having regard to the scope and depth of the future relationship”.
In other words, the more integrated the UK is with EU economy and structures, the more EU employment law the UK will have to obey. Any arrangement that leaves the UK less integrated than an EU member state will result in fewer EU employment law protections than a member state would have.In other words, the more integrated the UK is with EU economy and structures, the more EU employment law the UK will have to obey. Any arrangement that leaves the UK less integrated than an EU member state will result in fewer EU employment law protections than a member state would have.
Workers' rights at risk after Brexit 'even in event of deal' – reportWorkers' rights at risk after Brexit 'even in event of deal' – report
The UK also commits to upholding the European Convention on Human Rights (implemented in the UK through the Human Rights Act). But this is directly at odds with previous non-legally binding political declarations, such as the 2015 Conservative party manifesto, promising to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights”, or the party’s 2017 manifesto promise to “consider our human rights legal framework when the process of leaving the EU concludes”.The UK also commits to upholding the European Convention on Human Rights (implemented in the UK through the Human Rights Act). But this is directly at odds with previous non-legally binding political declarations, such as the 2015 Conservative party manifesto, promising to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights”, or the party’s 2017 manifesto promise to “consider our human rights legal framework when the process of leaving the EU concludes”.
Squaring the Brexit circle on workers’ rights – that is, satisfying both Tory Brexiteers who want out so they can reduce rights and millions of workers who voted for Brexit who clearly don’t want their precarity increased – has proved as difficult a proposition as any other. Despite politicians projecting their own agenda on to what the political mandate from the leave vote really is, the common denominator appears to be an instruction to the government to enable us to have our cake and eat it.Squaring the Brexit circle on workers’ rights – that is, satisfying both Tory Brexiteers who want out so they can reduce rights and millions of workers who voted for Brexit who clearly don’t want their precarity increased – has proved as difficult a proposition as any other. Despite politicians projecting their own agenda on to what the political mandate from the leave vote really is, the common denominator appears to be an instruction to the government to enable us to have our cake and eat it.
This deal might have got the cake, but it seems to have ended up on our face rather than in our mouths. This is partly why the chorus of calls for a “people’s vote” has been growing louder, and has been backed by various trade unions, including the Independent Workers’ Union of Great Britain (IWGB). One thing is certain: millions of workers in the UK didn’t vote to have less protection at work. And this is what May’s Brexit deal is offering them.This deal might have got the cake, but it seems to have ended up on our face rather than in our mouths. This is partly why the chorus of calls for a “people’s vote” has been growing louder, and has been backed by various trade unions, including the Independent Workers’ Union of Great Britain (IWGB). One thing is certain: millions of workers in the UK didn’t vote to have less protection at work. And this is what May’s Brexit deal is offering them.
• Jason Moyer-Lee is the general secretary of the Independent Workers’ Union of Great Britain• Jason Moyer-Lee is the general secretary of the Independent Workers’ Union of Great Britain
BrexitBrexit
OpinionOpinion
Employment lawEmployment law
Article 50Article 50
European UnionEuropean Union
EuropeEurope
Foreign policyForeign policy
Theresa MayTheresa May
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