12 LEGAL UPDATE 14 February 2020 | www.newlawjournal.co.uk

The impact of Brexit on workers’ rights Amanda Robinson & David Wolchover argue that workers’ rights are at risk & address some concerns about post Brexit deregulation

IN BRIEF ffThe UK legal system: access to justice and admiration. ffThe Withdrawal Agreement and employment rights: diminishing legal employment protections. ffFunding cuts: risks to the British legal system. ff‘’: the consequences.

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t is no exaggeration to claim that the the risk to employment rights, but since admit it in public, is that labour market legal system of the UK is widely admired EU law provides a minimum standard it deregulation is one of the principal around the world. For decades our can only be assumed from the following benefits of leaving the EU. Take away IParliament and courts have been zealous passage that the Conservative Government EU rules on effective remedies and in guaranteeing access to justice irrespective intends to remove employment rights: sanctions, and the sky (or floor) is the of wealth and status and in maintaining an ‘Through our Red Tape Challenge, we limit’ (see ‘Brexit and Human Rights’, equitable balance between the rights of the will ensure that regulation is sensible Michael Ford, https://bit.ly/2SbZm4K). individual and the interests of business. and proportionate, and that we always Such an approach is fundamentally In one particular area, the UK’s law- consider the needs of small businesses misconceived and demonstrates that many making institutions have, in conjunction when devising new rules, using our new politicians suffer from an impoverished with the EU, developed solid employment freedom after Brexit to ensure that British understanding of economic verities. Yet it rights while at the same time ensuring that rules work for British companies’ (‘Weekly goes almost without saying that the more wealth-generating potential Notes: 2019 election manifesto special’, contented and secure staff feel the more of business can thrive in a mixed economy ICLR, https://bit.ly/2uA99sj). productive they will be. The equation is (see ‘A guide to UK Employment Law’, It may justly be feared that Brexit has simple: removing their rights will make Tim Russell, November 2019, https://bit. become—even if it was not always— them less content and potentially less ly/2Ha0CPx). an objective by means of which the productive. EU law has been partly responsible Conservative Party, aided by the As to the second reason above, the for the establishment of minimum rights insouciance of the opposition, will have words of Sean O’Grady, are instructive: ‘ under UK employment law. For example, secured the removal of established long for someone, even Jacob Rees-Mogg, our EU membership has resulted in the employment rights and protections. Two to be honest, to tell the British people that consolidation of maternity rights, equal reasons may be envisaged for this: the only way of making Brexit work is to treatment, post-natal parental unpaid leave, ffThe Conservative Party places build a world-class competitive economy. and the maximum limit on working hours insufficient value on employment This is sometimes called the “Singapore- laid down by the Working Time Directive rights, regarding them as an on-Thames” model, or Thatcher’s Fourth (‘UK employment rights and the EU’, TUC, impediment to business. Term – a programme of deregulation, https://bit.ly/31LcvVQ). ffThe vast majority of Brexit impact liberalisation, competition, loosening assessments foresee substantial loss worker rights, free trade, migration and The Withdrawal Agreement & to the economy. It is predicted that privatisation on a scale that has not been employment rights the result may well be a minimum of a yet contemplated, never mind shouted It follows, therefore, that one of the most half a million job losses and exposure about’(see ‘Only a Thatcherite model of important consequences of the UK’s of the regions to GDP reduction of deregulation can save Brexit now. The termination of membership is that it will between one and 16%. This may Tories shouldn’t be afraid to admit that’, inevitably diminish legal employment generate a belief that the only way Sean O’Grady, online protections. Indeed, the new European to secure recovery is to attract new https://bit.ly/39rUjTL). Union (Withdrawal Agreement) Act business and this will necessitate large In other words, once the full impact 2020 contains no provisions preservative scale deregulation. of Brexit is experienced, the only of EU-derived employment rights even way to stabilise the economy will be though rights should be protected until As to the first reason, Michael Ford deregulation, what is often called the ‘race December 2020. argues that ‘[t]he logic of the Brexiteers’ to the bottom’. It hardly bodes well for The Conservative Manifesto highlighted position, though they are reluctant to workers’ rights. www.newlawjournal.co.uk | 14 February 2020 Brexit LEGAL UPDATE 13

Risks Mantra of the ‘People’s Will’; Wolchover, In 2015, Andrew Langdon QC highlighted We believe that the D, Did Activating Article 50 Constitute an the risks to the British legal system from prime minister’s Indictable Offence?; Wolchover D, ‘The case funding cuts (see ‘A world class British “ for a referendum re-run,’ 169 NLJ 7823, legal system under threat?’, February 2015, ‘deal’ will leave the p12, Wolchover, D., ‘Wake up Westminster! https://bit.ly/31JjyOt). In spite of the Here’s exactly why Article 50 was unlawfully promise by the Conservatives to increase UK significantly triggered’; Robinson, A., Brexit A2Z: Facts such funding the downturn in our economy worse off than Not Fiction, 2019). following Brexit will mean less rather than more public funds are available. The ones ’s Comment to suffer most will be the vulnerable. agreement & all Even as of today’s date, there remains a Perhaps above all the chief concern is query over what assessment of Johnson’s that the changes will lead to increases in forms of Brexit Brexit has been undertaken; on 19 discrimination against workers, primarily will leave the UK November 2019 it was reported that women and minorities. We already know ministers had decided not to publish a that ‘institutional racism’ exists in the worse off than Treasury assessment which was understood police and other services (see ‘Brexit: the had the status quo to predict a reduction in the UK economy impact on equalities and human rights’, of between £70bn and £130bn. A response Nicki Georghiou and Angus Evans, p9 at continued” from the government to a Freedom of https://bit.ly/2OIW2Mu). Deregulation will Information request by Labour MEP Julie result in inequality, not merely between Ward stated: ‘There is no “economic business and workers, but as between impact assessment” based upon the different groups of workers themselves. We have argued in other writings in withdrawal agreement, nor is there a date Unravelling 45 years of progress is hardly a this journal and elsewhere that since the for an “economic impact assessment” to progressive development. statutory basis of the 2016 referendum take place.’ While Brexit is firmly owned by was that it was to be confined to that of We believe that the prime minister’s ‘deal’ the Conservative Party it is troubling an advisory exercise the government were will leave the UK significantly worse off than that Labour and the Unions lamely, legally obligated, in determining whether Theresa May’s agreement and all forms of unquestioningly and pusillanimously to activate Art 50 of the Treaty on European Brexit will leave the UK worse off than had mimicked the Conservative ‘will of the Union, to consider all relevant factors of the status quo continued. people’ mantra and transparently were the Leave/Remain issue, not merely the The simple fact is that at any point up to only lukewarm in their belated support wafer-thin Leave majority (incidentally 31 January 2020 the prime minister could for Remain. Their woeful failure to fight constituting a mere 37% of the registered simply have revoked Art 50 on the basis of Brexit tooth and nail has arguably betrayed electorate). Yet the referendum result the unequivocal national interest. But we the interests of the British working class. was the sole factor considered not only fear that, on the most charitable reading Lisa Nandy, one of the Labour Leader by the government but by a majority of of their approach, neither he nor his party candidates acknowledged in January Parliamentarians in passing the original were aware of the reality facing the average 2020 that changes to the then Withdrawal EU (Withdrawal) Act 2018. Since this citizen and will merely continue to chant Bill threatened workers’ rights (see flew in the face of the purpose behind the ‘Get Brexit Done’ even if that means we https://bit.ly/2Hdtzdz). EU (Referendum) Act 2015, the decision have another ten years of discussing and However, that has been the situation by Theresa May to activate Art 50 on 29 suffering the consequences. NLJ from the start of Brexit, as Nandy herself March 2017 was wholly unreasonable and argued as long ago as April 2017 and it accordingly unlawful. might have been hoped that the Party Ratification by Parliament followed Amanda Robinson, barrister, Great Russell would make some acknowledgment at because members were arguably ignorant Street Chambers. David Wolchover, barrister, least of the risk posed by Brexit to workers’ of the adverse legal implications of Mrs Ridgeway Chambers and Article6Law, 2 King’s Bench Walk. rights (see https://bit.ly/2UFU4QU). May’s decision. (Wolchover, D, False

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