Fresh from breaking a ‘cast iron guarantee’ that the Conservatives would hold a referendum on the Lisbon treaty, David Cameron, without a trace of irony, now promises the British people ‘straight talk and plain speaking’ on the issue of Europe. One of Cameron’s ‘promises’ is to restore national control over social and employment legislation, in particular:
‘We want to restore national control over those parts of social and employment legislation which have proved most damaging to the British economy. For instance, we would seek guarantees over the application of the working time directive in our public services, such as the fire service and the NHS.’
Ignoring the fact that this promise is not politically ‘doable, credible or deliverable’, as it would not only require a new treaty and the agreement of all EU member states, it would put the rights of millions of workers in the UK at risk. Were this policy ever implemented it would give the Tories carte blanche to amend and repeal vast swathes of UK employment law. Currently such an approach is legally impossible as the majority of our employment law derives from EU law and where they are in conflict EU law will always override national law. Given the Thatcherite heart of the Tory leadership, we would see a huge retrenchment of those employment rights that so many workers now take for granted in their working lives. Given the opportunity, the Tories would undoubtedly put the free market first and employment protection second.
What Cameron proposes strikes at the heart of both ‘social Europe’, which is to protect the basic employment rights of its citizens, and ‘economic Europe’. As the European Court of Justice made clear in 1974 in Defrenne v Sabena, the right to equal pay under Article 141 of the European Commission treaty (and EU employment rights generally) promote a double aim, one economic and the other social, which is not only to eliminate unfair competition, but to further the social objectives of the EU ‘which is not merely an economic union, but is at the same time intended by common action, to ensure social progress and seek the constant improvement of living and working conditions’.
There is simply no way that all the other members of the EU would consent to the UK government opting out of one of the fundamental pillars of the EU, which would also have the effect of giving the UK an unfair advantage over other member states by allowing laxer employment standards and protections.
Membership of the EU has led to the most radical extension of employment rights that this country has ever seen. The source of much of UK employment law derives from either European Commission treaty rights or mandatory European Commission directives. Additionally, it was by Labour signing up to the social chapter in 1997 that the UK became bound by the framework directive. This has led to workers being protected from discrimination by virtue of religion, sexual orientation and age, as well as creating new rights not to be discriminated by virtue of harassment because of someone’s disability. The Tory opt-out negotiated in Maastricht would have meant that the UK government would have been free to ignore these rights. Given the Conservatives’ record on voting against the minimum wage and practically every other aspect of employment legislation over the last 12 years, it is inconceivable that such protections would have been adopted in full, if at all, by a Tory government.
This cynical and unrealistic promise represents a huge opportunity for Labour to point to its record of real and concrete achievement in the field of employment rights and to portray itself as the party of employment rights. It also allows it to make the case with real confidence that membership of the EU is not just about economic and security interests, but about protecting thousands of workers from abuse, discrimination and unfairness in the workplace.