Brexit and NI Employment Law – A modest proposal: Can we have an NI-specific campaign to defend workers’ EU rights?

by Guest Post on August 30, 2016

We are delighted to welcome this guest post by Ciaran White, Ulster University School of Law. Ciaran can be reached at c.white@ulster.ac.uk

One of the many issues that gives rise to concern arising from the ‘Brexit’ vote is what it will all mean for those labour law rights that have been generated or influenced by EU law. Labour Lawyers recognise freely that EU law has had a considerable influence on the development of UK employment law: prior to 1973 it was still quite common to hear lawyers describe the discipline as the ‘Law of Master and Servant’, reflecting its 19th century Victorian origins, with all the implied power imbalances that that appellation entails. Forty-plus years of Common Marker/EC/EU membership has radically and significantly helped to change the nature and character of that relationship and workers’ protections, even if the fundamental 19th century notion of an ‘agreed’ contract between employer and employee remains at the heart of the legal understanding of the relationship.

Over that period, a wide range of EU directives setting out employment-related rights and entitlements have been promulgated. These include the Acquired Rights Directive, the Pregnant Workers’ Directive, Part-Time and Fixed Term Workers’ Directive, the Parental Leave Directive, the Working Time Directive, the Employment Equality and Equal treatment Directives, the Posted Workers’ Directive, the Directive protecting employees in the event of the insolvency of their employer, TUPE, the Agency Workers’ Directive and the Collective Redundancies Directive, to name some of the more important ones.  And, by virtue of the UK’s membership of the EU, it was required to transpose these (i.e. implement them in domestic law). Where it failed to do so, or did so inadequately, the UK was not acting in conformity with EU law and could be made to implement the EU law correctly: the EU law could be ‘leveraged up’ to secure change in the UK’s law. In that sense, EU law acted as a form of ‘super-constitutional law’, to borrow an idea that I first heard outlined by the late Professor Stephen Livingstone (QUB).

Westminster’s predominant approach to Northern Ireland employment law over the period since Common Market accession was to enact legislation that was territorially confined to Northern Ireland, keeping the employment law statute book separate and distinct from that applying in the rest of the UK, against the day when there would be devolved government. Because it was always anticipated that employment law would be part of the devolved government’s competencies, separating out the NI labour law statutes was intended to make the task of amending them more straightforward and to avoid the difficulties of an NI Assembly having to amend a Westminster statute as it applied to NI, possible and all as this is. Thus, most of the Directives listed above, have found their expression in NI law as separate NI enactments. Some examples are the Working Time Regulations (Northern Ireland), Agency Workers Regulations (Northern Ireland) 2011, Part-time Workers etc… Regulations (Northern Ireland) 2002, Maternity and Parental Leave Regulations (Northern Ireland) 1999 and subsequent amendments, but the range of NI-specific EU-generated legislation is quite extensive.

Now, we know that employment law is a devolved competency so the content of labour law is a matter for the Assembly. And we are all aware that a majority of NI residents voted ‘Remain’ and all political parties active in NI, other than the DUP, and UKIP, to my knowledge, were pro-Remain. Moreover, a range of these parties – notably the SDLP, the Alliance and Green Parties – are active in the mooted judicial review challenge to the implementation of the Brexit referendum, (along with notable individuals or organisations such as Professor Monica McWilliams and Disability Action’s Monica Wilson along with CAJ).

So, here then is my suggestion: surely there must be scope for a campaign in which all the pro-Remain political parties pledge themselves to preserve the existing EU-generated employment rights as they are found in the NI labour law statute book? I envisage a campaign in which those political parties publically commit themselves not to amend or repeal any one of a list of legislative enactments that have been adopted in order to comply with EU law. (Where the EU-generated right has been transposed by a UK-wide enactment, the parties would pledge themselves to preserve the status quo by enacting NI-specific enactment that would replicate the content of that UK-wide enactment in the event of the repeal of the latter by Westminster.) If would be a type of jointly-made, publicly promulgated, manifesto commitment amounting to a positive step by those political parties. It is a step within their gift to make. It would represent a real and practical effort to protect the interests of the majority in NI who voted ‘Remain’. It might, if political parties were unwilling to sign up to an open-ended commitment to never alter those rights, be limited in the first instance to the mandate of this Assembly, with the idea that it would be open for re-negotiation for each subsequent Assembly mandate. I accept that it would be very unlikely to have any legal enforceability but it would represent a proactive and mature response to the uncertainty created for NI by the Brexit vote. No doubt it might also flush out those whose angst about the referendum result is no more that pointless handwringing or opportunistic political posturing and who are not prepared to do anything about it. The campaign would be bested spearheaded, in my view, by the trade unions or perhaps the Northern Ireland Committee of ICTU (NIC-ICTU), and the resultant pledge ‘published’ across real and virtual media. And lawyers like me would be happy to help draft it. Any takers?

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