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.

2009-11-06T14:07:09+00:00Tags: , , , , |