Post-Brexit judges’ powers plan prompts workers’ rights fears


Reports that the government’s Brexit bill will allow more UK judges to challenge the rulings of the Europe’s highest court have prompted fears that workers’ rights will be eroded.

The plans, detailed in the Withdrawal Agreement Bill on which MPs will vote on Friday, will see British judges in the lower courts handed powers to overturn rulings made by the European Court of Justice – a u-turn on the commitment made by Theresa May to transfer all EU regulations into domestic law.

A spokesperson for prime minister Boris Johnson said at a Westminster briefing yesterday: “The bill will ensure that the Supreme Court is not the only institution able to consider retaining ECJ rulings.

“This is an important change which will ensure that we do not face a legal bottleneck and inadvertently stay bound by EU rulings for many years.

“We will take back control of our laws and disentangle ourselves from the EU’s legal order just as was promised to the British people.”

However, trade unions have suggested that the plans will lead to an erosion of workers’ rights after Brexit.

Jason Moyer-Lee, general secretary of the Independent Workers’ Union of Great Britain told the Independent: “Low-paid workers have benefited from the EU court’s more generous interpretation of employment rights, in particular, the right to paid holidays.

“Today’s announcement will lead to a chaotic free-for-all with exploitative employers trying to re-litigate every positive development in workers’ rights from the past several decades. The bosses have a true ally in this prime minister.”

TUC general secretary Frances O’Grady told the paper that the prime minister’s commitment to protect workers’ rights after Brexit “has to include important case law on workers’ rights”.

Employment lawyers agreed that reducing the ECJ’s influence in the UK might drive down workers’ rights over time.

Adam Lambert, a partner at Bryan Cave Leighton Paisner, told Personnel Today:

“The ECJ has been the workers’ best friend for many years. Steps to reduce its influence in the UK will, over time, have a downward effect on workers’ rights.

“However, today’s proposal is muddled. The lower courts are still bound by UK employment law and the UK appeal courts, both of which have followed EU employment law and the interpretations of it by the ECJ for over 40 years. If the lower courts overrule ECJ decisions they are going to create uncertainty and grounds for appeal. Rather than avoiding bottlenecks, today’s proposal will guarantee them.”

Richard Isham, a partner at law firm Wedlake Bell, said the impact of the changes might depend on which judges will be given the new powers. “For example, will the expansion include employment tribunal Judges? If they do, then this would potentially allow for a divergence between the laws of England and Wales on workers’ rights – eg: how holiday pay is calculated – and EU law.”

He noted that Boris Johnson’s new deal with the EU does not enshrine workers’ rights in UK law. For example, the level playing field provisions, which underpin workers’ rights and were in the Withdrawal Agreement 2018, “has now been relegated to the Political Declaration, so it is not legally binding”.

He said: “The workers’ rights provisions in the Withdrawal Bill 2019-2020 will not come into force when the Bill becomes an Act, rather they may be introduced at a later date if the responsible minister (the Business Secretary) so decides…there is no obligation on the government, under the Bill, to avoid introducing legislation that dilutes or removes workers’ rights.

“However, the risk that workers’ rights will be diluted may be mitigated by the terms of the government’s new Employment Bill.”

Recent landmark judgments by the ECJ include the requirement for employers to keep records of all hours worked to comply with the Working Time Directive, and the ruling that employers might not have to factor overtime into holiday pay calculations unless the worker is contractually obliged to work overtime.

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2 Responses to Post-Brexit judges’ powers plan prompts workers’ rights fears

  1. Avatar
    Dorcas Thomas 20 Dec 2019 at 6:12 pm #

    Dear Personnel Today. Teresa May’s deal did not guarantee a continuation of existing workers rights when we left the EU. During Transition of 2 years we would have to follow EU law, but during this time EU based UK legislation could be repealed to take effect at the end of transition. The treaty says that the EU would accept Uk laws that existed at the end of transition, provided they were in line with other treaty commitments we have, such as the European Social Contract, the ILO agreements & Kyoto. This means that the working time directive could be repealed, since on Brexit, we would lose the right to fair & reasonable working conditions which is not covered by any other binding treaty. Once in the backstop any further alterations would need to be negotiated & agreed by the EU. The time limit on legislating for changes during transition was of concern for Tories, especially if they had a slim majority, which would be likely with this deal. They didn’t like having to accept EU tarrifs that protected UK based industry. Many of them have substantial business interests in non eu countries. Transition could be extended to get more done, but this would leave us in a position where we were paying to be in the EU, had no democratic say in it, & had to obey all its rules. It would mean that the deregulation programme would have to be delayed, which would have been of particular concern to Farage, who wanted to avoid expensive underwriting of pensions & insurance that was being demanded by the EU.

    We were told that our EU based UK laws would be carried over after Brexit. This is true, but we were mislead that they would be maintained. Even today, there is talk that Boris’s deal has been altered to remove protection for workers. What the old deal did was list the legislation that they wished to ammend/repeal with a commitment to an industry consultation & a vote in parliament. This can hardly be construed as protecting workers rights in the light of the Government’s 80 seat majority. Still, it is nice to know that parliament gets a vote on a few changes to our legislation. When it comes to the environment, they have a bill that removes their say on specific regulation changes. This is the key outcome of Brexit. A small numer of people in government taking back control from a parliamentary democratic process. In the EU, every regulation had to be passed by a majority of MEPs that we democratically elected. Out of the EU and our laws are decided by ministers & their committees who determine whether parliament gets to vote on them or not. If this resulted in our Government acting in the National interest, things wouldn’t be so bad, but there are too many signs that our government is in the pocket of both the US & the EU who both want to use us as a platform for tax avoidance & cheap production that is more secure than other bases they are currently using to supply the EU, like Turkey. Whether de-regulation will come straight away, who knoiws, but the EU is in full acceptance that we are entitled to make the necessary adjustments to make up for the economic losses caused by brexit. It is certain that £20bn of eu insurance, derivatives & pensions business must leave London for the EU. Many standards & batch testing departments are moving. P&O will lose up to 4% of its Sothern Irish Freight on the calais/dover runs & Dublin to Liverpool when the direct routes from Ireland to Zebrugger are expanded. Exporters will have a government estimated £6bn customs red tape bill & there is no certainty there will be zero free trade & no quotas. That depends on by how much we deregulate & by how much the EU want us to. Companies like Unilever will relocate some operations unless they get tax & de-regulation concessions. Unilever announced a move of their HQ to Europe, but so far this has been resited by their UK shareholders.

    • Avatar
      Dorcas Thomas 21 Dec 2019 at 4:14 am #

      I dare you to post this, after necessary moderation, but I think, if you look extensively at the fine details everything I have said is correct. At least one other person will have read it & be correctly up to speed on what is happening. There is a lot of false news flying around these days.

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