Why the government’s promises on post-Brexit workers rights are hollow

Our analysis shows that claims that legal protections will keep pace with the EU are wholly unenforceable. 

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These are desperate times for Prime Minister May. Having spent over two years negotiating a withdrawal agreement that is equally detested by most political factions in the House of Commons, as evidenced by the fact that it was rejected in the biggest defeat for a sitting government ever, and unable to obtain any concessions from the EU sufficient to win over her supposed political allies, the PM has resorted to offering up sweeteners in an effort to woo backbench Labour MPs. 

The first sweetener – the Stronger Towns Fund, designed to send money to Labour leave constituencies – was dismissed by Labour MPs as a “bribe”, a “drop in the ocean”, and “extraordinarily pathetic”.  So last week the PM offered the second sweetener: an announcement on what the government would do to maintain workers’ rights post-Brexit. In sum, the government commits to doing two things. First, any time a bill which could affect EU employment rights is considered, the minister introducing the bill will be required to publish a statement certifying the bill will not erode those rights. Second, every six months the government will inform the House of developments in EU employment law and table an amendable motion with the government’s intentions regarding said law. According to Business Secretary Greg Clark, “the government may set out that they intend to legislate to give effect to those commitments or that they intend to give effect to them in a different way, or that they do not intend to give effect to them, setting out their rationale.”

Despite the robust rejection of this non-offer by the Labour leadership and the trade union movement, incredibly, some Labour MPs have made noises indicating the offer might have won them over to supporting the PM’s withdrawal agreement in tomorrow’s vote. For example, despite the fact that the announcement still allows the Tories to undo existing EU employment law and refuse to implement any future law, Great Grimsby MP Melanie Onn labelled the proposal a “compromise”. Similarly, Jim Fitzpatrick, MP for Poplar and Limehouse, wrote: “These measures seem to be not mere lip-service – these are said to be cast-iron guarantees, announced in parliament and enshrined in legislation, that Labour MPs can legitimately claim to have helped secure.”

On the assumption that these Labour MPs are not simply in the cynical search for an excuse to vote for Brexit but rather have been duped into believing that the proposal actually matters, the IWGB and TSSA trade unions have commissioned a legal opinion from EU law expert Aidan O’Neill QC to set the record straight. Over 47 pages, O’Neill sets out the myriad ways in which EU law provides protections for workers; from health and safety to discrimination and paid holidays, EU law pervades the day-to-day rights UK workers take for granted. But O’Neill also sets out why last week’s proposal falls so dramatically short of the status quo. 

The government is not committing to implementing all new EU law employment rights, and even if it wanted to, this commitment would be a legal impossibility as no UK parliament can bind its successors. As O’Neill states: “Against this background, any statement or assurances by the UK government that it can and will ensure the continued protection of worker’s rights at least the same levels as exist in the EU from time to time can be nothing more than claims “writ on water”. They are wholly unenforceable as a matter of law and the post-Brexit constitution and therefore cannot be relied upon.”

But the opinion goes further. For even in the extremely unlikely event that every future parliament, no matter how right wing, chose to implement all new EU employment law, workers in the UK would not benefit from this law to the same extent as they would while in the EU.  For the special features that make EU law powerful, such as its direct effect on governments, its primacy over conflicting domestic law, and above all else its interpretation by the Court of Justice of the European Union, are all lost in this or any other Brexit deal. 

Every Labour MP will receive a copy of the opinion today. Upon reviewing it, none of them can in good faith use workers’ rights as a reason for voting for the withdrawal agreement tomorrow. Similarly, no Labour MP can assure workers that their rights will be protected post-Brexit to the same extent as they are today.  If workers’ rights are the concern, any Brexit deal needs to be put back to the people, allowing workers the opportunity to reject it wholesale.   

Jason Moyer-Lee is the General Secretary of union IWGB.