For many years Eurosceptic Conservatives have wanted the UK to be “opted out” of EU social legislation – John Major negotiated an opt-out from the “social chapter” at Maastricht (though he seemed to get no thanks for that from his own backbenchers) and Michael Howard has long been arguing for repatriation of power in the social and employment field. Fair enough; I don’t agree (even though I sympathise to some extent with concern about creeping EU competence in this area) but my main interest is in the legal aspects of these ideas of course.
So I’m interested in the proposal from the think-tank Open Europe which, following David Cameron’s announcement that he will indeed seek a repatriation of social and employment law, now argues for a complete opt-out from or disapplication of all the EU’s social provisions. You can read the full briefing here; there’s also a press release, and a post at Conservative Home from Mats Persson explaining Open Europe’s approach.
I think Open Europe is a good thing. I certainly don’t always agree with it – not by any manner of means – but it does not tend to make wild claims about EU law and the legal content of this briefing, while containing some interpretation of the legal position from a Conservative viewpoint (for instance, not everyone I think would agree the ECJ’s judgments on working time have unpredictably extended the scope of the legislation), is serious and pretty accurate. My one real query is whether it’s right to say UK law that has implemented past EU social law would remain in force following an opt-out; that at least needs careful thinking about, and might require the opt-out to be cleverly worded so as to apply only prospectively. But they may be right.
A very important point that I think needs drawing attention to, though, is that Open Europe is calling for an opt-out from all EU social law – including what’s now article 141 TEC, and what will soon be article 157 of the Treaty on the Functioning of the Union. Article 141/157 is the provision that
Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
The UK has never before been opted out of this provision – it was always in the Treaty the UK signed up to (in a slightly different form), and we have always been bound by it. Many women in the UK – and men – have successfully relied on it in UK courts to achieve equal pay.
I’m not accusing Open Europe of wanting to discriminate against women – I’m sure they’re more sensible than that. But nonetheless, they are calling for the UK to opt out of this. Why? Their argument makes much of the “costs to business” of EU social regulation. But no costs can be saved by this at all, if the UK continues to require equal pay for women. And an opt-out would potentially harm the UK labour market. At present, talented women from elsewhere in Europe know – without having to pay a solicitor for advice – that they can come to work in the UK safe in the knowledge that they have the same equality rights here as they do at home. An opt-out from this article would remove that security, and potentially hinder free movement and labour flexibility.
I think Open Europe, and Conservatives and others who want “social repatriation”, need to be explicit about it if they want out of equal pay – it may affect many people’s attitude to their proposals. To be fair, Open Europe have been open about it in their full briefing, if not the press release. I’ll be interesting to see how they justify the proposal, if they can.
Surely the fairly simple solution is that Open Europe believe that such a law should be passed by a UK Parliament for the UK with a popular mandate to do so,and that the UK government should have the right to revoke it if the people so wished. Then the law would have democratic legitimacy. Does anyone doubt that such a law would be passed?
Furthermore, you are indeed right about women from abroad being enthusiastic about their chances in the UK compared to other countries, and that this is a benefit to us. I know many women in Italy who want to move here to take advantage of our attitudes. Italy, of course, enjoys the delights of EU social law.
Yes, Dark Knight – we have such a law already in the shape of the Equal Pay Act 1970, which has been amended to take account of EU law. If we want equal pay, what’s the actual problem with committing to it at international level?
The “actual problem” is that economic liberals (inside or beyond the Tory party) don’t want equal pay or any statutory restraint on the employer-employee contract.
I imagine that one of the objectives behind such an opt-out would be precisely to enable the repeal of “social” legislation inspired by the EU, notably the Working Time, Discrimination, Agency Workers etc etc regs. Is even the minimum wage safe? The Equal Pay Act is not, however, seen as “tainted” by the EU, so that will probably remain.
Personally, I find the Open Europe paper laughable. Attempts by the UK to get what it wants by withholding its budget contribution, stirring up trouble among other member states and making demands based a tendentious and meaningless referendum will simply be met by blank faces and a polite request to use the withdrawal procedure introduced by Lisbon.
Of course Patrick. Because our financial contribution to the EU has absolutely no effect on the other countries’ attitudes to our membership, and the colleagues would never be swayed y such concerns. It is a giant ring of hippy-love, where all work in the service of all except for the monobrowed Brits. Really we should just ask the French and the Germans what they want, hand over the dosh and get on with creating the abject state of insignificance you are hallucinating as our present.
Carl, I do not see the force of your argument at all. I could equally ask that as we already have such legislation what could possibly be served by taking away democratic control from it? In fact, it seems you have rather fatally subverted your own original arguments that opting out would make Britain a less attractive place for women to work, and also that the Tories need to make clear whether they are happy with withdrawing this commitment, as such legislation would continue to exist anyway.
when anyone advocates withdrawing a commitment to equal pay for men and women, can there be any other conclusion than that they DO wish to discriminate (further) between the sexes? what are the trying to do? create cold fusion by a very indirect route?
if it looks like a measure designed to screw over women and smells like a measure designed to screw over women, it’s hardly likely to be next month’s issue of spare rib.
.-= simply wondered´s last blog ..self-serving scum =-.
You shouldn’t believe everything you read in the Daily Mail. Britain pays almost as much as the Netherlands in contributions, and its substantial rebate is funded by a good number of the new Member States. The elimination of the rebate plus the redistribution of EU funds due to the UK, together with the duties payable once the Common External Tariff kicks in would cover all if not more than what Britain currently contributes. If you want to ask the French and Germans what they want, the answer you’ll get is that they would be quite happy to return to the pre-73 situation sans the British cuckoo in the nest. Further, some may even see the British exit as an opportunity to bring in Turkey in some capacity.
@darknight: I’m not being deliberately obtuse, but don’t understand how you think I’ve subverted my own argument. Isn’t your argument just an objection to any internationally agreed standards? After all, if you’re willing to defend your allies, why join an alliance? If you object to torture anyway, why sign up to an anti-torture treaty? If you’re open to goods from abroad anyway, why bother with the WTO? The bit you’re leaving out is that you might want to hold others to the standard you yourself apply. Unless you’re happy to compete in the internal market with countries that cut costs by paying women less and having decent health and safety rules, then EU standards on those things make sense.
Patrick, equal pay may not seem tainted by Brussels, but it is. For a start, our equal pay legislation only allows “equal value” claims because the ECJ required it of us. The subsequent amendment was the one I think that led to the famous incident of Alan Clark being drunk at the dispatch box. If more Eurosceptics remembered that, they’d want to row back on equal pay.
And the “taint” goes back further. Barbara Castle may not have had the EEC in the front of her mind when she took the Equal Pay Act through Parliament – she wanted the principle anyway of course, and was against the Common Market. But Roy Jenkins, who was Chancellor at the time, would certainly have been aware this was an important preparatory step to possible membership. I think our having that Act is a result of genuine social policy having coincided with the European policy of at least part of the Labour cabinet in 1969/70.
i do feel a bit naive here but is anyone who exists in this century actually against equal pay as a principle?
.-= simply wondered´s last blog ..self-serving scum =-.
Carl – Your argument was that opting out of the legislation in question
a) would put Britiain’s commitment to equal pay in question, affecting the willingness of women to move here to work (and presumably promoting the contrary)
b) therefore requires the Tory party to make it clear whether they oppose equal pay for women.
Given that, as you state yourself, the UK has had equal pay legislation since 1970, both these arguments fail, as
i) legislation would still exist to that effect
ii) therefore there would be no cause for belief that the Tories opposed such arrangements.
You have now introduced different arguments. The first one is confused. Are you saying that everything one would wish to do in one’s country one should commit internationally to do? Presumably not. Therefore, given that you are making the claim here (that equal pay legislation is better dealt with with international legislation), it is for you to justify why equal pay provisions should be legislated for internationally.
That is notwithstanding the substantial difference on the issue of sovereignty between an anti-torture treaty and community legislation, which is what all this discussion is about.
Your second argument is far more interesting given that it hints at the deep protectionist strategies of the EU which are commonly hidden under claims to hold the opposite values. Essentially it boils down to arguing that we need to prevent other countries from doing things more cheaply than us in order to gain advantage. I.e. we will lose out if we implement equal pay legislation whilst others don’t. (continued …)
In the first place this is questionable on the grounds that we would become a far, far more attractive place to work for talented women, and would benefit from the ensuing immigration of highly skilled women to work here.
Furthermore, you will have noticed that the USA, Canada, Australia, NZ, and others have equal pay legislation notwithstanding their absence from the EU. They are not proposing to remove it to gain advantage over us. Nor is it feasible that they would propose to in the foreseeable future.
But the main point I would raise is far more fundamental. The bargain that is being suggested here is: give up the right to control your own affairs, the right wrested with blood from the elites of the past, for the ability to influence Bulgaria’s employment legislation, on the grounds that this will lessen the attraction of the Bulgarian labour market for investors. A debate where this claim was made as explicitly as it has by you here would be a more honest debate. As a eurosceptic I have no fear for the result.
Patrick. Perhaps you could be more specific about what you are claiming re the contributions of the Netherlands and the UK? Are you saying that more euros are paid by the Dutch than the UK? More per head? More per % of GDP? There are plenty of studies which show that the EU is a net drain on our coffers, and that money we’re losing isn’t being thrown into the sea. I am unaware whether this is also true for the Dutch. If so, that is a matter for them.
As for your claims re the French and the Germans, this kind of personification of entire countries and conspiratorial thinking is very much in keeping with the con-home UKIP-er style of thinking. I don’t doubt there are plenty of French and Germans who would like the UK out, just as there are plenty in both countries who would want to leave themselves. The issue is whether their governments want to lose us. I say they don’t – 1) money and markets, 2) the only credible military on the continent (possible exception France), 3) UN seat/links with anglophone/asian countries, general diplomatic clout. I say this will lead to them being willing to do deals, up to a point which means the Tories will have some success. I would be utterly delighted if the Tories failed to repatriate powers,as I believe that would provide the final shove that pushed the electorate from the present 25/30 out, 35-40 in but less power, 20-25 just in, to a steady majority for withdrawal. I am sure the French and the Germans read opinion polls too, so we shall certainly see very swiftly if they want to kick us towards the exit.
Simply – I have never heard anyone contest it in my 28 years on this earth. I think you are imagining it.
‘Simply – I have never heard anyone contest it in my 28 years on this earth. I think you are imagining it.’
.-= simply wondered´s last blog ..self-serving scum =-.