For obvious reasons, discussion of the Prime Minister’s statement earlier this week focused on her decision to give Parliament votes on No Deal and potentially delaying Brexit.
But there were other elements of her speech that merit attention – particularly the part about “ensuring that leaving the EU will not lead to any lowering of standards in relation to workers’ rights, environmental protections or health and safety.”
This is a sticky area, with political pressure in three directions.
The Government is sensitive to charges by the Opposition that it intends to erode just such legislative standards – Labour mutter darkly about a “Tory Brexit” meaning exactly that. Vote Leave countered that very allegation during the referendum itself. This article in The Times, by Gisela Stuart and Andrea Leadsom, is a good example of the campaign’s clear answer:
‘Again and again Britain has gone further and faster than the rest of the EU in pushing for workplace rights, racial and gender equality and crackdowns on hate speech.
All of the EU legislation we have accepted since Tony Blair took us into the social chapter has been incorporated into UK law and will remain in place if we vote to leave. Any decision to simplify or change any of those laws would need voters’ consent. Our public holidays will also be protected and maternity and paternity leave will stay.’
At the same time, the EU is concerned – revealingly – that a newly-regained right to control our own laws might see the UK become more competitive than the bloc, either by abandoning existing rules or, more gradually, by refusing to adopt new ones. Brussels therefore seeks a way to somehow forbid regulatory variation in perpetuity – a hope which Eurosceptics suspect underlies the open-ended nature of the backstop.
And of course among Leavers, including many on the Government’s own backbenches, there is strong opposition to the idea of taking back control only to promise never to actually use it. The prospect of copying and pasting EU law into British law for all eternity is obviously unappealing – indeed it is a form of relationship with the EU that even the Remain campaign attacked back in 2016. Those seeking a more competitive UK through Brexit warn against promising to give up control of some of the levers by which it might be achieved.
By virtue of her nature as well as the Parliamentary arithmetic, the Prime Minister has sought to navigate a path between those three competing pressures. The 2017 manifesto, Nick Timothy-driven as it was, promised further legal protection over and above keeping existing EU-derived rights:
‘We will not only guarantee but enhance workers’ rights and protections… Workers’ rights conferred on British citizens from our membership of the EU will remain.’
The first element of that pledge was embodied by the Great Repeal Bill – which became the European Union (Withdrawal) Act. The legislation copied and pasted EU law into the UK statute book – a step near-universally accepted as necessary for basic legal continuity when Brexit occurs, thereby ensuring an independent UK would begin with the same workers’ rights and protections as it had during its EU membership.
That ought to have assuaged some of the more extreme conspiracy theories about a mass deletion of legal rights on Brexit Day itself. But the issue which Theresa May now seeks to address is the question of that ongoing “guarantee”. How can she ensure she is believed about preserving existing rights – particularly by Labour MPs whose votes she might yet need to pass a deal – while not alienating a mass of Leavers and free marketeers on her own benches by surrendering to the Brussels’ demands for permanent obedience to EU law (an ongoing common rulebook, to raise the ghosts of Chequers)?
Tuesday saw her attempt:
‘Taking back control cannot mean giving up our control of these standards, especially when UK governments of all parties have proudly pursued policies that exceed the minimums set by the EU – from Labour giving British workers more annual leave to the Conservatives and Liberal Democrats giving all employees the right to request flexible working.
Not only would giving up control go against the spirit of the referendum result, it would also mean accepting new EU laws automatically, even if they were to reduce workers’ rights or change them in a way that was not right for us.
Instead, and in the interests of building support across the House, we are prepared to commit to giving Parliament a vote on whether it wishes to follow suit whenever the EU standards in areas such as workers’ rights and health and safety are judged to have been strengthened.
The Government will consult with businesses and trade Unions as it looks at new EU legislation and decides how the UK should respond.
We will legislate to give our commitments on both non-regression and future developments force in UK law.
And following further cross-party talks, we will shortly be bringing forward detailed proposals to ensure that as we leave the EU, we not only protect workers’ rights, but continue to enhance them.’
In short, the Prime Minister is walking a tightrope made of red tape. \
She is right to reject “giving up our control of these standards” by “accepting new EU laws automatically”. That she framed the prospect as a risk that the EU might “reduce workers’ rights” shows that she knows her target audience is red, not blue. So there would be no ‘fax democracy’, or permanent obedience to new EU law.
However, in a classically Mayish way, she went on to tout a new way to square the circle – “giving Parliament a vote on whether it wishes to follow suit whenever the EU standards in areas such as workers’ rights and health and safety are judged to have been strengthened”.
That could be a much bigger change to how our country works than it at first appears.
For a start, have ministers considered how often the EU legislates, and therefore potentially how often such votes might need to take place? It seems the decision on what counts as a ‘strengthening’ of EU law would fall to a joint committee of unions and business groups. At least one such body currently exists in BEIS to advise on red tape, but this would be a major increase in the importance of what is currently a backroom talking shop.
It could also in effect give the EU a pseudo-executive role in British legislation. The power to introduce EU law would simultaneously become a power to propose that law in the UK Parliament, at least for a vote on the principle. That might be time-consuming, or dull, but equally it isn’t impossible to imagine it might be used to help or hinder one side of British politics or another if the powers that be in Brussels and Strasbourg so desired. A Government’s agenda could be repeatedly disrupted, by accident or design, by the need for debates and votes on endless or awkwardly-timed proposals that don’t even originate in the Commons, still less from the executive.
The idea of guaranteeing all existing EU workplace regulations in perpetuity – by legislation, no less – is controversial in itself. It sacrifices flexibility in the economy, and therefore limits opportunities to grow, to respond to crises or adapt to new circumstances.
Introducing what is in effect a whole new constitutional innovation with little thought is even more short-sighted than that. The Prime Minister might need to sway some votes in the next few weeks, but afterwards we will all have to live with the rules she proposes, and their consequences. The Fixed-term Parliaments Act, an under-scrutinised but major change to our constitution, waved through for temporary political expedience, ought to serve as a cautionary tale.