Dr Liz Oliver
Brexit creates uncertainty for important employment rights. Very many of the employment rights that have come to be expected as part of an employment relationship in the UK derive from EU law. Should the UK no longer be obliged to maintain these as part of its obligations under whatever relationship it has to the EU, then their future becomes much less certain. Could, on the other hand, Brexit create an opportunity for employment rights? An opportunity to re-think the way that employment law and other forms of regulation (such as collective bargaining) work together in a way that suits the economy in UK and responds to the national and global challenges that workers face? The answer to that question very much depends on the opportunity for an open and informed democratic debate. Whilst the Government is making assurances about protecting the workers’ rights, the mechanism by which it is doing this – ‘a Great Repeal Bill’ – potentially contains a back door through which such provisions could be readily amended or repealed without the full scrutiny of Parliament. Unfortunately therefore both workers and trade unions are right to be concerned.
What is at stake?
The impact of EU law on employment in the UK reaches far and wide, encompassing equality legislation; pregnancy; maternity and parental leave; paid holiday; employee rights in the context of insolvency; collective consultation in the context of redundancy to name but a few areas. Others have mapped this in great detail.
The impact of Brexit on this body of workers’ rights depends on two main contingencies;
- the nature of the future relationship with the EU and
- the political climate with regard to employment regulation at national level
It seems unlikely that the UK’s future relationship with the EU will entail obligations in the area of employment and other social law but much remains to be seen. As details of the Prime Minister’s negotiating strategy emerge in particular the intention to leave the single market and customs union and not to contemplate existing models such as ‘the Norway option’ which would entail continued membership of the European Economic Area. It becomes clearer that the overriding goal is for the UK’s future relationship with the EU to entail minimal to non-existent obligations. Nevertheless much remains to be seen. The Prime Minister’s speech and the subsequent white paper set out her unilateral intentions ahead of the negotiation with the other Member States of the EU. As such, it is aspirational and projects an intention for Theresa May to have her cake and eat it too. Any concessions around key objectives such as the “greatest possible access” to the single market and “tariff-free trade with Europe and cross-border trade there to be as frictionless as possible” will come with considerable strings attached.
In terms of the political climate with regard to employment regulation, the picture here is mixed. The current Government has not taken the overtly deregulatory stance of the Coalition Government or previous Conservative Government and the Prime Minister and her government have made assurances about protecting workers rights. Nevertheless concrete legal steps to ensure that current standards are maintained are lacking. Of particular significance is the distribution of power between the Executive (Government) and Parliament in decision making in the area of employment law. This important matter will shape extent to which matters of employment law will be opened up to democratic debate.
To what extent will worker’s rights be protected and maintained through the Brexit process and beyond?
The EU law that is relevant to employment takes different forms and takes effect at national level in different ways. Whilst some employment law derived from the EU can be found in Acts of Parliament (primary law) other provisions have been transposed using secondary legislation based on the European Communities Act 1972 and others still take effect automatically because they are directly applicable (The European Communities Act 1972 allows such provisions to have effect without further enactment).
Brexit poses two types of issues 1) technical issues about the form and function of different provisions and 2) issues of substance about what role employment law should take within the UK. As the discussion below will show. The two issues interrelate.
Following the referendum result some called for a repeal of the European Communities Act 1972 (in order to ‘undo’ EU law), but it was clear that that position would be unworkable. The Prime Minister has instead announced a bridging mechanism in the form of a ‘Great Repeal Bill’ which will repeal the European Communities Act 1972 and transpose existing EU law into national law. The Government’s white paper on the UK’s exit from the EU contains assurances about worker’s rights:
“The Great Repeal Bill will maintain the protections and standards that benefit workers. Moreover, this Government has committed not only to safeguard the rights of workers set out in European legislation, but to enhance them”
On the one hand this looks like a sensible idea. It maintains legal certainly and potentially opens up a space to review what provisions to keep and whether or how to change or remove them. But an important question is who gets to make these decisions. Will it be Parliament or will it be the Government?
Constitutional lawyers have identified the proposed use of enabling provisions within Great Repeal Bill as a stumbling block to achieving enhanced Parliamentary sovereignty. The Department for Exiting the European Union’s announcement states “The Repeal Bill will include powers for ministers to make some changes by secondary legislation, giving the Government the flexibility to take account of the negotiations with the EU as they proceed.” Such enabling provisions may give ministers the power to amend or repeal former EU law based on the Great Repeal Act using ‘light touch’ secondary legislation. Of particular concern are so called ‘Henry VIII’ clauses which would allow for the repeal of primary law without further Parliamentary scrutiny, these could open up employment law that is already enacted by Acts of Parliament to amendment or repeal. It raises concerns that the ‘back door’ is left open for the Government to make significant changes to employment law without full debate or scrutiny. The scope and exercise of such powers will delineate the potential for Parliamentary (democratic) debate about what employment standards are expected by workers and employers within the UK.
The size and shape of the ‘back door’ is yet to be seen but talking about assurances that the Government has given on worker’s rights one legal expert notes
“There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation”.
Workers and trade unions are right to be concerned and to seek legal mechanisms to guarantee employment rights.
Attempts to assure worker’s rights
Labour MP Melanie Onn introduced a private members Bill ‘The Workers’ Rights (Maintenance of EU Standards) Bill’ as an attempt to ensure that the current legal regime remains in place, however this was ‘talked out’ of Parliament on Friday (13th January).
Several amendments to the ‘Article 50 Bill’ (European Union (Notification of Withdrawal) Bill 2016-17) seeking to protect employment law were tabled. These took different forms, some sought to ensure that the Prime Minister have regard to the public interest in existing social rights and others sought to ensure that current provisions are maintained and that Parliament has full scrutiny of any proposed changes to primary and secondary law. None of these amendments have held.
Whilst some have argued that the removal of key employment protections that derive from EU law would be ‘politically unthinkable’ others argue that it would be ‘naïve’ to assume that any of the rights derived from EU law would be immune from repeal. It is my view is that a government with a deregulatory agenda can make important changes to employment law that are far reaching yet subtle, even where whole-sale deregulation would be politically unworkable (see previous blog post). The use of Henry VIII clauses within the proposed ‘Great Repeal Act’ could facilitate far-reaching changes without commensurate democratic debate. Employment law is complicated stuff, nothing short of a full and open democratic debate can support its appropriate reform. The Brexit domain is a million miles from this.