Briefing paper

The new prime minister is committed to delivering Brexit without further delay. With the government intent on leaving the EU and the chances of a renegotiation of the withdrawal agreement in flux, the prospect of a ‘no-deal’ Brexit has become increasingly plausible. This scenario could have significant implications for the future of UK law-making; the UK would no longer be subject to the oversight of the European Commission or the jurisdiction of the Court of Justice of the European Union (CJEU).

One critical area of law which could be affected under a no-deal Brexit is EU-derived labour and social policy. This legislation underpins key elements of the UK’s employment and equalities framework. EU-derived labour and social policy is a contentious area because it was one of the original concerns of British Eurosceptics in the 1990s and 2000s. Many leading critics of the EU argued that social policy should be the domain of national governments and claimed that the EU’s minimum labour and social requirements were too onerous for member states.

Moreover, as the prospect of a no-deal Brexit nears, there are increasing signs that the government could be intending to depart from the European model on labour and social policy. Sajid Javid, the current chancellor, has announced a “Brexit red tape challenge” to either “improve or remove” EU legislation considered inefficient (Tew 2019). Indeed, in 2018, he reportedly argued in cabinet that the UK should scrap certain EU-derived workers’ rights as part of a ‘shock and awe’ strategy to navigate the uncertain circumstances of a no-deal Brexit (Honeycombe-Foster 2018).

There are also reports that the Johnson government intends to disregard prior UK commitments on maintaining environmental and social standards after Brexit (Fleming et al 2019). In the new prime minister’s letter to European Council president Donald Tusk in August, Johnson noted that “although we will remain committed to world-class environmental, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU” (Prime Minister’s Office 2019a). The government’s new proposals on the backstop are explicitly designed to remove the ‘level playing field’ provisions which require the UK to maintain current levels of social protection (Prime Minister’s Office 2019b). On the face of it, the UK’s current EU-derived labour and social policy faces an uncertain future in the event of a no-deal Brexit.

This briefing examines the implications of a no-deal Brexit for labour and social rights in the UK and explores how the legal framework governing these rights may change after a no-deal. The briefing finds that, while on ‘day one’ of a no-deal Brexit EU-derived labour and social rights will for the most part be maintained in UK law, beyond ‘day one’ these rights face a far more uncertain future.

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