By Nicola Countouris and Keith Ewing
First published on the UK Labour Law Blog, 28th October 2019, and is available at https://wordpress.com/view/uklabourlawblog.com.
In a remarkable article – Don’t be fooled – the EU is no defender of workers’ rights – The Guardian’s economics editor Larry Elliot trashed as ‘complete nonsense’ the ‘idea’ that British workers need to be aligned to the EU. This is a view embraced by a small, but – in the current climate of fractious Parliamentary alliances and tactics – crucially important part of British society. That being the case, it is not clear where the proponents of this view have been for the last forty years to produce something so conspicuously ill-informed and myopic.
Where to begin? First, the Guardian article gives an incomplete account of our laws and the influence of the EU. Reference is made in to equal pay and health and safety at work. In fact, with the exception of the home grown statutory minimum hourly rate (it is neither a minimum wage nor a living wage and we should stop to referring to it as such); the failed trade union recognition legislation; and the restrictive legislation on the right to strike, there is little in the labour law playbook that has not been influenced and enriched by EU membership.
It is true, as the Guardian’s article maintains, that the Equal Pay Act 1970, the Health and Safety at Work Act 1974 and the Sex Discrimination Act 1975 were minted in London rather than Brussels. But it is also true that these provisions would be even more risibly ineffective but for the input of EU law in various guises. There would be no equal pay for work of equal value, we would still be stuck with the narrowest notion of ‘comparator’ in equal pay claims, there would be no application of the Equal Pay Act to pensions, and there would still be a cap on compensation for discrimination claims.
That apart, the article makes no reference to paid holidays, redundancy consultation, TUPE, data protection, or European Works Councils. None of this is likely to have been introduced unprompted by the monetarist, neo-liberal and austerity driven governments of the last forty years. While many of these measures are less effective than they should be, the weakness of the law is a matter for which successive British governments have been largely responsible, as they first tried to block important social initiatives until they were over-ruled, and then tried generally to wriggle free when implementing their obligations.
Overall, however, UK labour standards generally tend to be more or less on a par with European standards (and on some occasions even more robust) in those areas presided over by EU labour law instruments. But on the contrary, UK labour standards tend to fall well below European standards in areas such as unfair dismissal where, as noted in 2011 by the very strongly deregulatory driven Beecroft Report commissioned by Cameron when he was Prime Minister ‘[t]here is no EU concept of “unfair” non-discriminatory dismissal, so there are no other EU constraints on what the UK can do in this area’.
Secondly, the Guardianarticle runs with the old trope about the EU being a source of restriction on workers’ rights because EU law has enshrined four basic freedoms for business in the EU Constitution. Three at least of these freedoms are not something that the Left can begin to defend. But it would take a remarkable leap of faith to believe that the EU Constitution does not simply express in writing the underlying values of successive British governments, and the direction of British social, economic and political policy since the industrial revolution.
The article predictably trots out the Viking case in the Court of Justice of the European Union (CJEU). The author seems to confuse this case with the separate CJEU decision in Laval: Viking did not post workers from Estonia, but reflagged its vessels there. But we should not hold that against him, as the point of substance remains the same and the oversight does not affect the argument made. Nor is there any doubt that both Viking and Lavalwere bad decisions (which indeed may well have contributed to Brexit), as we have frequently argued, and now explain more fully in our booklet on Brexit and Workers’ Rights by published by the Institute of Employment Rights.
But as we also point out, leaving the EU will not relieve us of all the restrictions that were created in Viking. So far as they apply to secondary action, these latter extend to the EU restrictions introduced in British domestic law in 1990, retained by Labour governments (with the fairly recent approval of the European Court of Human Rights), despite Blair’s criticisms of the measures when they were first adopted by Thatcher. Although the Vikingcase had serious effects, the fact is that when Britain leaves the EU secondary action of the kind taken by the ITF in that case is still likely to be actionable.
Properly contextualised, Vikingwould be a poor reason to support Leave. Which is not to dissent from the call in the Guardianarticle for a Labour government fully committed to workers’ rights and collective bargaining, as we have also advocated elsewhere. But the future is not a binary choice between the EU and a Labour government. It is for both. Assuming Corbyn is elected to replace Johnson, history suggests that Labour won’t be there forever, and that at some time there will be a continuing need for the inderogable framework of rights we have had for the last forty years. This is not pessimism. It is common-sense.
The role of Labour will be not only to expand the domestic agenda but also to work in solidarity with progressive forces in the EU to change the direction of travel there as well (and an argument could be made about the British Left having a duty to do just that, after four decades of British governments acting as a brake on Social Europe). Post-Brexit, Labour will continue to have a responsibility to ensure that there will be no regression from European standards, while also protecting us from a future relationship with the EU based on a deregulatory free trade agreement whereby the UK gradually cuts itself adrift.
Finally, and perhaps more important than the controversial Guardianarticle, is the leak from inside government on the following day to the Financial Timesabout the withdrawal negotiations. This revealed a deliberate manoeuvre on the part of Johnson’s team to secure maximum opportunities to degrade labour standards, a point we had elaborated on in a recent IER Briefingcomparing Johnson’s deal with the terms of the previous ‘deal’. If the Guardian article is right about workers’ rights, why would a Johnson government apparently ideologically – if not otherwise – aligned to the EU need scope for creative regression?
Let’s hope that the most vulnerable amongst us are never in a position to find out. And let’s hope too that the people in our view misrepresenting the role of the EU in the protection of workers’ rights are never required to account for their folly. They would have fooled and failed us all.
Nicola Countouris is Professor of Labour Law and European Law at UCL Faculty of Laws and a member of the Executive Committee of the Institute of Employment Rights. His main research interests are in Labour Law, UK, international, and comparative EU Law, Social Security Law, and Public Law.
Keith Ewing is Professor of Public Law in The School of Law, King’s College London and is the President of the Institute of Employment Rights and the Campaign For Trade Union Freedom. His research interests are in labour law and constitutional reform, with special reference to the relationship between social rights and constitutional law.
This blog by Nicola Countouris and Keith Ewing ‘Don’t be fooled – workers’ rights will suffer outside the EU,’ was first published on the UK Labour Law Blog, 28th October 2019, and is available at https://wordpress.com/view/uklabourlawblog.com
