Based their IER report on Brexit and Workers’ Rights, Nicola Countouris and Keith Ewing offer a timely assessment on how the new deal reached by the Prime Minister will affect workers’ rights. They assess that this deal, as much as the previous one, will lead to the erosion of British workers’ rights.
While most MPs, analysts, and commentators are spending endless hours trying to spot the difference between the ‘old deal’ and the ‘new deal’, pinpointing the extent to which Northern Ireland may or may not dislocate itself from the rest of the UK, one thing is once more very clear: Deal or No-Deal, workers’ rights will suffer.
The new deal agreed yesterday does not change our assessment of the old deal concluded by PM May last year: once out of the EU, UK workers’ rights will be subject to a relentless process of stagnation, divergence, and eventual erosion.
The most visible difference between the text agreed by PM Johnson and the one agreed last year can be found in the new wording of what is now clause 77 of the Revised Political Declaration. Whilst the previous wording of what was clause 79 made a reference to a future relationship ‘building on the level playing field arrangements provided for in the Withdrawal Agreement’, the new paragraph 77 is extremely non-committal in terms of what will happen to UK labour standards after the expiry of the transition period. ‘The precise nature of commitments should be commensurate with the scope and depth of the future relationship and the economic connectedness of the Parties’.
In plain English that means that future UK governments reserve their right to lower labour law standards and the EU reserves its power to limit access to the EU internal market if that risks giving an unfair competitive advantage to UK goods and services. They already reserved such powers under the deal agreed by Theresa May, but it is clear that the new wording of clause 77 suggests no interest whatsoever in building on the (already very shaky) level playing field envisaged by Annex 4 of the Withdrawal Agreement.
The other visible difference is that the now scrapped 2018 version of the Ireland/Norther Ireland Protocol (included in the 2018 Withdrawal Agreement) made a passing reference to ‘ensuring the maintenance of the level playing field conditions’, whereas the new version does not.
But these nuances aside, make no mistake. As noted in our recent IER report on ‘Brexit and Workers Rights’, deal or no-deal, once the UK is outside the EU, once supremacy, direct effect, and the Court’s jurisprudence are no longer relevant to the legal status of EU labour law directives as currently enshrined in UK statutes, there will be nothing (either in the Political Declaration or the Withdrawal Agreement) preventing future governments from chipping away the employment protections currently enjoyed by 30 million UK workers and their families.
Reinvigorating UK workers’ rights depends on future, progressive, parliamentary majorities consistently developing them. This would, at the very least, require a commitment to robust non regression and dynamic alignment principles, so that workers in the UK do not lose the protections they already enjoy and so that we keep pace with any progressive developments in the EU, currently being generated under the European Pillar of Social Rights initiative. Dynamic alignment also means that UK courts would be required to apply decisions of the CJEU on the interpretation of Directives on which British labour law would continue to be based.
But, we would contend that this strategy of ‘Hold and Develop’ is much more achievable from within the political structures of the EU, rather than outside them. If workers rights are a priority for any of the MPs or MEPs voting on this deal, the only rational choice is to vote against it.
Nicola Countouris is Professor of Labour Law at UCL.
Keith Ewing is Professor of Public Law at KCL.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL