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Let parliament entrench people’s EU-derived social and human rights with supermajorities.

Executive Summary

The question of the social and human rights that we, as citizens and residents of the UK, have enjoyed during the 45 years of British membership of the European Union has been given far too little attention. They are about to be severely downgraded because outside the EU they would become ordinary Acts of Parliament subject to amendment or abolition by a simple majority of MPs voting in parliament. Whereas in the EU, they are protected as constitutional or fundamental rights that cannot be changed except by a two-thirds super-majority. In addition, the member-states do not allow downgrading or watering down of rights once adopted, whether workplace, gender, family, discrimination, consumer or environmental. Yet the government is planning to scrutinse every single one, opening parliamentary debates in which the Conservatives have a majority. We could lose many of the beneficial protections we have enjoyed for over a generation. Therefore we should demand that they be protected from watering down by two-thirds supermajorities.

Since Theresa May agreed to set out her Brexit plans to Parliament, we knew discussions were going to be about trade and restricting free movement. But the issue of our many social and civil rights acquired since 1972 seems never to be foremost on her agenda. One could think that someone who proclaims her concern to represent the ‘people of Britain’ and to create ‘a country that works for everyone’  must be equally concerned with safeguarding the social and human rights of ‘the people’ granted us by joint UK-EU action over 45 years. Yet ‘the British people’s rights don’t figure unless it is to talk about re-examining them. This is a dangerous situation for everybody, for all the protective EU rights from which we benefit have a solid constitutional status that cannot be abolished nor watered down without member-states and MEPs first negotiating huge majorities. Rights spelled out in the latest EU Treaty and Directives are thereby rock solid, directly effective, and can be enforced by the European Court if not properly implemented.  When Britain leaves, our rights will autmatically lose their power after being downgraded to an unsafe Act of Parliament that can be changed by a simple majority of one MP.  This is the hidden problem that threatens us, and we would all benefit from getting stronger safeguards for our rights after losing the protection provided by the EU.

This is all the more important because even ardent leavers did not demand to weaken their rights. Nowhere are employees demanding to have their holiday period cut. Leaver women don’t want to earn less pay per hour just because their job is part-time; nor to go back to work sooner after giving birth. Parents don’t for picnics on dirty beaches with their children. Wheelchair users feel no nostalgia for the days of ubiquitous barriers to mobility. Such rights and many more deserve to remain solid, safeguarded by parliament as Acts that cannot be changed except by super majorities of MPs, such as 60% or two-thirds, voting in parliament.

The popular leave vote was not about turning back the clock on workers’ rights. Leavers were convinced that their job prospects and wages could be improved by excluding other European nationals from local labour markets, in the hope that this would reduce the perceived competition between them. If anything, the popular leave vote was about maintaining past gains (many of them acquired during British membership of the EU) that the incomers are supposedly undermining.

This potential loss of rights was blurred by the apparent logic that existing Acts of Parliament could still be relied on for protection after leaving, since the UK would have long ago incorporated EU Directives into them, making the new rights solidly ‘British’ by now. The Prime Minister herself has felt confident to mention that no rights would be lost by Brexit. Sadly, this confidence is not merited. Both originally-British and EU-initiated social and human rights are under threat when the UK leaves because leaving severely reduces the strength and durability of the protective legislation we have been enjoying for 45 years as members of the EU. This threat needs to be spelled out: outside of the EU, UK citizens and residents will live in a far less secure legal environment for social and human rights than is enjoyed by people in other long-standing member states of the EU. Again, this was not part of the Brexit plan.

The imminent danger is that these rights will become downgraded in their solidity and durability by the nature of the British legal system, in which laws can come and go by simple parliamentary majority. By contrast, all other democratic countries in the world (except 3) have written constitutions embodying high principles and rights, especially in Constitutions describing the polity as a social states of law such as Germany and Spain, where social laws feature as well. These texts cannot be changed except with a high majority of two-thirds of parliamentarians. That is one layer of protection. In addition, each Constitution has provisions that must be developed into specific laws ‘constitutional’, ‘fundamental’, ‘organic’, or ‘basic’ laws that cannot be reversed except by higher majorities (‘supermajorities’).

High majorities for key policies and rights make protections longer-lasting since it is more difficult for governments to obtain the consensus needed to muster even a 60% majority in a democratic parliament. This required use of consensus-seeking supermajorities expresses the intention of a society and its state leaders to recognise that citizens have fundamental needs, so a durable consensus must be formed. Otherwise there is no true social contract between the state and its inhabitants. But in the UK, there are no superior, fundamental, hard to modify, laws on people’s social and human rights, so they are not a secure part of our citizenship.

In addition, when joining the EU, more and more European citizens acquired an additional level of protection for their social and human rights in a wide range of EU policy fields. This protection is even stronger than the previous two layers, because the member states of the EU agree to pool their sovereignty and accept the oversight of the European Court of Justice, whose legal decisions take precedence over those of individual member states – though only in the specific areas where the members have agreed to abide by harmonised legislation. These social and human rights receive greater protection because founding member-states agreed that levels of protection must not fall to the lowest common denominator during the harmonisation processes. Once a measure is adopted, all member states must transpose it into domestic law, and new members have to adopt all of the previously agreed measures (the ‘acquis’). Equal pay for men and women was incorporated into the 1957 Treaty of Rome because France had it; the other five states had to adopt it. So did the UK before it joined, and all subsequent new members. Equally, the UK’s 1974 Health and Safety at Work Act was once the most comprehensive among EU states, but once transformed into comparable EU law, all the other members were obliged to catch up. Overall, turning back or watering down social or human rights is not part of the EU method. Differences of interpretation of EU law can be disputed and re-examined in the Court, but Court rulings are binding on member governments. In this sense, the rights adopted and endorsed at EU level are the most solid of any in the world.

On leaving the EU, UK citizens and residents will lose all the protections defended by the European Court of Justice. In addition, we will lose the protection of fundamental/basic/organic or constitutional laws because they are not part of the British tradition. We will be left with ‘ordinary’ Acts of Parliament on social and human rights, but let us remember, these can be both passed more easily and abolished more easily by a simple majority of 1 vote by one MP in the House of Commons. This would be unusual, but frequently governments work with quite small majorities, certainly nothing near 60% of the total voting, making laws passed unstable.  Consider the case of the Human Rights Act passed under a Labour government in 1998, which has been under threat from Conservatives ever since, with Prime Minister May voicing her desire to get rid of it. So, although progressive governments can also introduce or improve such ‘ordinary’ laws with a simple majority, any national practice where legislating by plurality is standard, with no higher order laws, creates a less secure set of protections, that are dependent on the effect of party competition. Such a system is less generous to citizens and residents, who should as a principle, be entitled to indefinite protection from the multiple risks of damage they face every day.

In sum, the present danger is that Brexit creates a scenario in which UK citizens and residents are threatened with the loss of two out of the three layers of protections that citizens in EU member-states enjoy. This is a dramatic loss for ‘the peope of Britain’ of its previous strong and lasting levels of protection enjoyed over 45 years. The UK has also lived with this level of ‘fundamental’ rights, and seen to it that they are implemented in practice, that its citizens benefit from them, and lived with the European Court of Justice safeguarding them. De facto, our legal order has tolerated  and worked with the concept of ‘fundamental laws’ for 45 years and has not set out to challenge any on the grounds that they needed a high majority to be amended.

Now, and additional threat hovers over us. Via the Brexit process, the May government has announced it will one by one examine the rights we already enjoy. In early October 2016, David Davis told the House of Commons that a great repeal Bill would ‘convert existing European Union law into domestic law’ but that some of the 40 years of EU lawmaking ‘simply will not work on exit’ […]. ‘It would be for the Commons to consider changes to our domestic legislation to reflect the outcome of the negotiations[1]. This could lead to much downgrading. In the same vein, the Prime Minister let it be known that ‘There will be an opportunity to scrutinise, amend, repeal or improve any aspect of EU law. Though Davis said workers rights would not be eroded, the social and human rights in question are much broader than simple workers’ rights, covering amongst other matters, the self-employed; non-discrimination rights protecting individuals born with certain physical characteristics; rights of consumers, tourists, patients and sick people, children of divorcing couples, breathers of polluted air; and environmental rights of individuals and communities generally. Theresa May spoke soothingly about legal rights being guaranteed ‘as long as I am Prime Minister’[2]  – but unwittingly made the very point that is the problem for all of us: our EU-initiated rights would no longer be on solid ground as a new Prime Minister could try to reduce or abolish them any day by a simple majority.

The solution is for parliament to agree that citizens should be protected from loss of their existing rights by making all such protective legislation higher order Acts that can only be amended or abolished by super-majorities of 60% or two-thirds of MPs. This is agreat opportunity for citizens and residents all over the country. Without supermajorities, UK citizens are losing out in comparison with other constitutional countries, especially as some laws that originated at EU level now face hostility from the very same party and government circles who contributed to creating the EU’s protective umbrella of social and human rights in the first place.

The government and MPs need to take on board the urgency of entrenching the high status of British rights laws originated in the EU. After all, UK citizens have enjoyed them for 45 years within the EU rights system. Would any government or other political actors want to claim that long-standing social and human rights suddenly deserve downgrading?  While supermajorities may not be a strong feature of the British constitutional landscape, these rights have been treated as constitutional by British governments for forty-five years. They were all agreed by UK governments, by our elected representatives in the European Parliament, and some also by the Confederation of British Industry in specific tain cases; and parliament has respected their legal status.

If there is to be a ‘great repeal bill’, let it entrench these acquired rights for the long term *. It is the least our government and MPs can do for the public, both Leavers and Remainers alike. It would be a good example of a government wielding its sovereignty to stand by people’s rights instead of opportunistically downgrading them. Otherwise the cry for sovereignty is nothing more than a mean, minority demand to turn back progress.

* A full list can be provided on request.

Monica Threlfall is a Senior Research Fellow at the Global Policy Institute. London.

Endnotes

[1] Hansard (10.10.2016) ‘Next Steps in Leaving the European Union’, The Secretary of State for Exiting the European Union (Mr David Davis), Volume 615, Section 40.

[2] May, Theresa (2 October 2016) ‘Her full Brexit speech to Conservative conference’, The Independent, http://www.independent.co.uk/news/uk/politics/theresa-may-conference-speech-article-50-brexit-eu-a7341926.html