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Brexit and workers’ rights: what will remain of these hard-won protections after leaving?

Workers’ rights are a fundamental human right for a fair and democratic society. However, workers in the UK now face an uncertain future with the outcome of Brexit. Mainly because some fundamental rights, that are inscribed in EU law, currently govern the rights of workers in this country known as the EU Charter of Fundamental Rights (the Charter). But after Brexit how will this change?

The EU Charter of Fundamental Rights has protections under six titles: Freedoms, Equality, Solidarity, Citizens’ Rights and Justice. There can sometimes be confusion between the Charter and the European Convention on Human Rights. Although there are similar overlapping areas of human rights for both, the European Convention has been incorporated into UK law by the Human Rights Act, whereas the Charter only applies to matters regarding EU law and Member States.

One area that has caused a lot of concern for worker’s rights after Brexit is the withdrawal of the Charter by what is known as the Withdrawal Bill, which came into effect in March 2017 with the activation of Article 50. The Tory Government has assured the people that their rights would be looked after post-Brexit. In Theresa May’s speech at Lancaster House on 27 January 2017, she stated,

“And a fairer Britain is a country that protects and enhances the rights people have at work. That is why, as we translate the body of European law into our domestic regulations, we will ensure that workers’ rights are fully protected and maintained.

“Indeed, under my leadership, not only will the Government protect the rights of workers set out in European legislation, we will build on them. Because under this Conservative Government, we will make sure legal protection for workers keeps pace with the changing labour market – and that the voices of workers are heard by the boards of publicly-listed companies for the first time.”

The Government’s solution to the removing of the Charter, which is primary legislation, is to enact an archaic proclamation called the Henry VIII Clause so that it can be amended by this secondary legislation and therefore adapt EU laws to make them British laws.

Henry VIII Clauses are currently used to amend bills that would otherwise take a lengthy period of time for parliament on matters already approved by them. They have always been controversial, and the history of them could point to why. Henry VIII was despotic in his rule, and therefore the Clause named after him is precisely that, despotic in nature. This was a way that he could empower himself so as to avoid legislating through parliament, and the King published these in 1539 known then as the Statute of Proclamations.

Professor Douglas-Scott of Queen Mary University of London is co-director of the Centre for Law and Society in a Global Context. On the Henry VIII Clause and EU law she warns, “Unfortunately, Henry VIII Clauses are becoming a too familiar part of UK legislation generally. Yet such a measure would be a profoundly unparliamentary and undemocratic way to repeal or amend former EU law, and hardly a means for parliament to ‘take back control,’ given that parliament has a fairly minimal role in secondary legislation.”

On the Withdrawal Bill, the Equality and Human Rights Commission (EHRC) states that “The Charter provides more powerful mechanisms for protecting rights than are available elsewhere in UK law.”
To put this into perspective, the EHRC talks about six areas of concern that this loss of the Charter will affect:

  • An effective remedy for claims of discrimination at work.
  • The Charter itself is not static and therefore reflects social changes as they happen but without it there will be less flexibility to create and adapt to new rights.
  • The changes and loss of protection that EU laws guarantee for fundamental rights.
  • Gaps in human rights laws as the EU has legislation in place that has no direct equivalent for human rights in UK law.
  • Losing the Charter principles which are strong enough to interpret rights and other laws.
  • A legal confusion as the government tries to identify the equivalent of the different sources of Charter rights which are scattered throughout different fields of UK law.

There is a proud history of trade unionists who have helped fight for worker’s rights in Britain and a titan of this is the Trade Union Congress (TUC). It has been active for 150 years and has three of the countries’ biggest unions in its ranks, namely Unite, Unison and GMB, and a total of 5.6 million members. Its successes include helping to start the NHS in 1948, the 1970 Equal Pay Act, and in 1999 helping to establish the National Minimum Wage. So, it comes as no surprise that they echo the criticisms of removing the Charter and the subsequent impact on workers’ rights, as the statement on their website says,

“If she [Theresa May] really cared about our rights, then why did her ministers fight so hard to remove the EU Charter of Fundamental Rights from UK law on the day we leave?”

The past can and will have answers to find solutions for the present in any context, however if the solution from our history comes from an ancient bill from the 1500s that was created to exclude parliamentary decisions, I shudder at the outcome, especially if it replaces an active charter with an archaic static clause. We live in the 21st Century and need to act that way, preserving the past is important and we have wonderful museums to see the bones of dinosaurs and despotic Kings. However, when it comes to workers and fundamental human rights, we must look to the future and the changing work environment and constantly strive to match these conditions, or these hard-won workers’ rights will surely be facing extinction.

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