Workers’ rights after Brexit: the limits of legislation

The Government has unveiled plans on workers’ rights after Brexit, hoping to win the backing of some wavering Labour MPs for the Prime Minister’s Brexit deal. Ministers have committed not to reduce the standards of workers’ rights already granted by EU law, and have also promised that Parliament will have a right to vote on whether the UK should adopt each new EU labour law in future. These proposals are set out in new draft clauses to the Withdrawal Agreement Bill (WAB), the legislation which will implement the withdrawal agreement.

However, trade union leaders have rubbished the Government’s offer. Frances O’Grady, the general secretary of the Trade Union Congress, has branded the proposals “flimsy”, arguing that they won’t even guarantee existing rights after Brexit, let alone stop workers’ rights in the UK from falling behind those in the rest of Europe.

The truth is that the Government’s proposals do not do all that much, but there is a limit to how much it can do without further negotiation with the EU.

The Government’s promises go further than its proposed legislation does

The Government has made a “commitment not to reduce the standards of workers’ rights from EU laws retained in UK law”. However, the draft WAB clauses would not constrain this government, or a future government, from legislating to reduce workers’ rights.

Instead, the clauses would oblige ministers to make a statement, before the Second Reading of a Government Bill, that the bill will not remove any “pre-exit EU workers’ right”. If they could not do that, then ministers would have to make a statement that the Government wishes to proceed with the bill nevertheless.

The clauses would also oblige ministers to report to Parliament every six months on any new workers’ rights introduced by the EU, and put a motion before the house on what the Government intends to do about them. Parliament could then express a view about whether those new EU rights should be incorporated into UK law or not. However, the government would not be legally obliged to take any notice.

Domestic law alone cannot offer the cast-iron guarantees the unions seek

The Government’s critics are right to say that neither clause offers a guarantee against a reduction in workers’ rights. However, no UK law can be a cast-iron guarantee, as a future Parliament can always undo laws made by its predecessors. The place to look for tougher constraints, if that is the objective, will be the UK’s treaties with the EU.

The UK has already made some commitments on workers’ rights in the Irish backstop. If the backstop ever comes into force, it will forbid the UK from reducing the level of labour protection below where it stands at the end of the transition period. Exactly how that will be enforced remains unclear. Both sides agree, however, that they would prefer not to use the backstop and it is not intended to be permanent.

Commitments on future labour protection may help the UK negotiate a better deal with the EU

Trade unions want the Government to go further than the commitments it has made or the non-regression clause in the backstop, and instead commit to keep pace with new EU labour laws in the future. This ‘dynamic alignment’ would require the UK to give effect to new EU labour laws as they were introduced.

The Government could legislate for this in the WAB, but that would still be vulnerable to repeal by a future Government. The UK could seek to add a provision on dynamic alignment to the withdrawal agreement, but the EU has repeatedly said that this cannot be reopened.

The logical place to commit to alignment with future EU labour rules is in the agreement on future trade with the EU, which will be negotiated over the coming years. The Government could commit now to dynamic alignment as a negotiating objective. It could even give that negotiating objective statutory status in the WAB.

However, it is not just the trade unions who care about this issue. EU member states care about it too, as they are concerned that the UK will seek to gain a competitive advantage by deregulating its labour market. A commitment to dynamic alignment could therefore be a valuable card in the negotiation on the future relationship. If the UK does want to play that card, it might also want to get something from the EU in return.