07 March 2019

Chair and President of the Institute of Employment Rights – John Hendy QC and Professor Keith Ewing, respectively – have warned that the concessions Theresa May has given on workers' rights in a bid to push through her Brexit deal are meaningless.

'Non-regression' clause cannot guarantee non-regression

The government yesterday (Wednesday 06 March 2019) confirmed that it was committed "to not reduce the standards of workers' rights from EU laws retained in UK law and will ensure that new legislation changing those laws will be assessed as to whether they uphold this commitment".

John Hendy and Keith Ewing explained that the rights currently retained in UK law – to which the government's proposed protection would apply – 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," they said in an article for the Morning Star.

"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."

John and Keith also queried "what is meant by non-regression?" when it comes to existing EU rights. "Does it mean non-regression from standards as they are now? Or non-regression from existing obligations as interpreted by the Court of Justice of the European Union (CJEU)?" they asked.

"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 issue," they added.

Parliamentary vote on future EU laws does not mean the UK will reach international standards

The government has also promised that Parliament will be given a vote on adopting future EU rules on workers' rights after the UK leaves the bloc, starting with two forthcoming EU Directives that the UK has already voted in favour of in the European Council: The Work Life Balance Directive and the Transparent and Predictable Working Conditions Directive.

The Work Life Balance Directive would provide parents with two months of paid leave each and five days' leave for those caring for sick relatives.

The Transparent and Predictable Working Conditions Directive would set the terms of employment for workers on their first working day to provide improved security for shift-workers.

While May promised these directives would be taken to the vote in Parliament, Keith and John warned this should not be taken to be a guarantee that the UK will adopt progressive workers' rights.

"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," they pointed out.

"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?"

None of May's promises are actually legally binding

The experts also criticised May's vow that existing EU rights will be a "floor" rather than a "ceiling" for workers' rights in the UK as "worthless" and "a political promise with no binding legal effects".

They explained: "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."

"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," they added.

"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 it 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 ... 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."

Queries over the CJEU

After its publication, Keith and John's critique provoked debate within the Morning Star's letters pages. Kevan Nelson, North-West Regional Secretary for Unison, said: "I was surprised at the acceptance of Keith Ewing and John Hendy that “there is a compelling case for a strong dynamic non-regression clause embracing the case law of the Court of Justice of the EU” ... Keith and John have done more than most to alert the labour movement to the pro-employer nature of CJEU judgements, notably the Viking and Laval cases, which outlaw industrial action to enforce collective agreements, as well as the Alemo-Herron case, which nullifies crucial collective-bargaining rights of outsourced workers. Does it make sense to impose this reactionary case law on an incoming Labour government committed to implementing the Institute of Employment Rights’ A Manifesto for Labour Law?"

Keith and John responded: "No-one is advocating that the judgements of the EU court which are adverse to workers’ and trade-union rights should be preserved to inhibit the incoming Labour government. There are a good number of such adverse decisions. But there are some judgements which fortify workers’ rights. We had hoped that when we used the phrase “no regression on workers’ rights” it was clear that we meant that there should be a legal requirement that workers’ and trade-union rights in Britain after Brexit should be no less favourable than those applicable in the European Union. Under a Labour government, it goes without saying that workers’ and trade-union rights in Britain will be more favourable than those in the EU and that we will be freed of Court of Justice of the European Union (CJEU) decisions such as Alemo-Herron, Viking and Laval. But for the moment it is necessary to protect against the Conservative government watering down important British workers’ rights granted (or to be improved) by EU directives or CJEU decisions. What is required (and what the Tories will not agree) is:

• A guarantee after Brexit that every worker in the UK shall enjoy rights in relation to work which are no less favourable than those enjoyed by a comparable worker in the EU. (“Worker” to be defined as in EU law, since it is a wider definition, and applicable to those seeking or who have recently left work.)
• Any question of whether a UK worker has less-favourable rights to those of her EU comparator shall be determined by the UK courts. (The Tories want a vote on a government motion to decide.)
• In determining whether a UK worker has less-favourable rights than those of her EU comparator, the domestic courts will be required to have regard to any relevant jurisprudence of the CJEU. (So the courts will have to give effect to a CJEU decision giving more favourable rights but ignoring one which diminishes rights.)
• The guarantee shall be enforced by the UK courts on the application of any worker in the UK claiming to be affected.
• The guarantee shall be written into the Treaty for leaving the EU.