Brexit and workers' rights
| DOI | https://doi.org/10.13169/instemplrighj.4.0.0007 |
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
| Pages | 7-84 |
| Author | Nicola Countouris,Keith Ewing |
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Brexit and workers’ rights
Brexit and workers’ rights
Nicola Countouris and Keith Ewing
The labour law of the UK and of other Member States is, and will become,
more truly European than appears from the formal imprint of EC labour law.
It is European rather by reflecting the cumulative experience of national
labour laws, filtered through the prism of the EC institutions and refined in the
crucible of the developing European polity. The tendency towards conver-
gence of UK labour law with the labour laws of other Member States of the EC
is driven in the main by the institutional pressures of EC membership, and, to
a lesser extent, is the consequence of the workings of the international econ-
omy and, though less significant, a single European labour market. The
dynamic of this convergence process is complex and its results are far from
complete.
Professor Brian Bercusson, ‘The Conceptualisation of European Labour Law’
(1995) 24 Industrial Law Journal 3
Introduction
1.1 On 23 June 2016, the United Kingdom held a referendum on whether to
remain in or leave the European Union (EU). The referendum resulted in
51.9% of voters voting to leave, though a majority in Scotland and a
majority in Northern Ireland voted to remain. This largely unexpected
result led to the resignation of Conservative Prime Minister David
Cameron and to Theresa May assuming office. On 29 March 2017, the UK
government initiated the official EU withdrawal process required by the
Treaty on the European Union (TEU), Article 50, notifying the European
Council of its intention to withdraw from the Union. This put the country
on course to complete the withdrawal process by 29 March 2019.
1.2 The UK government headed by Theresa May (substantially weakened
as a result of the snap election of June 2017, called by Mrs May to
‘strengthen her hand’ in the Brexit negotiations) failed to conclude
and persuade Parliament to ratify an agreement by that deadline. The
deadline was extended twice, in compliance with the TEU, first to 12
Brexit and workers’ rights
8
April 2019 and eventually to 31 October 2019. Within that timeframe
the UK and the EU would have to a) negotiate and agree a withdrawal
agreement and a framework for their future relationship, while
b) navigating the unchartered waters of the Article 50 process, and
c) face complex and tough choices in terms of the details of their
future trade relationship, including the application of EU-derived
labour standards.
Article 50
1.3 According to the TEU, Article 50(2), in the course of this negotiating
period, the UK and the EU ‘shall negotiate and conclude an agreement
the framework for its future relationship with the Union’. The arrange-
ments for negotiating the agreement are detailed in the Treaty on the
Functioning of the European Union (TFEU), Article 218. In essence, they
prescribe the involvement, at different levels and with different capaci-
ties, of four key EU institutions: the European Council, the Council of
the EU, the European Commission, and the European Parliament.
Member States cannot individually negotiate with the withdrawing
country.
1.4 Article 50, as it is now widely understood, sets out two stages for the
negotiations between the EU and any Member State wishing to with-
draw. The first stage consists of negotiating and concluding ‘an
is sometimes colloquially referred to as ‘the divorce’ agreement. The
European Council clarified early in 2017 that this withdrawal agree-
ment would have to focus on matters such as the financial settlement,
the rights of EU citizens living in the UK and of UK nationals living in
other EU countries, the legal effects (if any) of pre-existing EU law in the
domestic legal systems of the UK, and other matters that would ensure
an orderly transition between actual EU membership and the ‘future
relationship’.
1.5 As part of this first phase of the negotiation, the UK and the EU can also
agree on a ‘framework’ for their future relationship, as Article 50 itself
provides. But the European Council, already in its April 2017 ‘guidelines
for Brexit negotiations’, clarified that an actual ‘agreement on a future
relationship between the Union and the United Kingdom as such can
only be finalised and concluded once the United Kingdom has become a
third country’.1 Basically, the terms of a future trade agreement or other
type of relationship between the UK and the EU (including the actual
legal effect of EU labour law directives, or the ability of UK companies to
Brexit and workers’ rights
9
access the Union’s single market or customs union) cannot be negoti-
ated in detail, let alone agreed, until after the ‘Brexit date’.
1.6 The latter is a date that may or may not coincide with the expiry of
the Article 50 deadline, depending on whether the ‘divorce’ agree-
ment includes a transition phase during which the precise terms of
the ‘future relationship’ can be set in stone and ratified by the two
sides, the UK and the EU. This is a crucially important point, as it cre-
ates a strong incentive on the UK to agree some form of ‘withdrawal
agreement’ – possibly one with a transition period inserted in – and
avoid a ‘No-deal Brexit’ that would inevitably lead the country to an
abrupt termination of its EU membership without any ‘future rela-
tionship’ deal waiting at the other side of the ‘Hard-Brexit’ door. The
agreement currently on the table (to which we return) provided for a
two-year transition.
‘Brexit means Brexit’
1.7 ‘Brexit means Brexit’, the mantra obsessively repeated by Theresa May
in the early months of her premiership, will probably go down in history
as one of the most fatuous political slogans ever coined. The reality is
that the legal effects of Brexit can vary considerably depending on what
kind of Brexit deal the UK and the EU might be able to agree following
the Article 50 negotiating period. The terms of this ‘deal’ (and in par-
ticular the terms of the ‘future relationship’ agreement) would also
have implications for the legal effects of any EU-derived labour rights in
the UK.
1.8 Later we outline in greater detail a number of alternative Brexit sce-
narios, and discuss their potential impact on workers’ rights. For the
purposes of this introduction, suffice it to say that there is a wide range
of possible Brexit outcomes. From so called ‘No-deal Brexit’, where the
EU and UK legal systems would sever all existing legal relations without
any new agreed arrangements supplanting them, to a Brexit with very
close ties with the EU, as close as those currently enjoyed by members
of the European Economic Area (EEA) such as Norway or Iceland. Some
would also advocate ‘No Brexit’ as a possible outcome of the Brexit
process, whereby the UK might decide to either revoke Article 50, per-
haps following a new Brexit referendum or a general election.
1.9 Two things, however, were clear right from the outset. First, the nego-
tiations would be a very complex, technical, and politically charged
affair, with the two sides of the table having to reach agreement on the
fate of some ‘12,000 EU regulations in force’, ‘around 7,900’ UK statutory
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