Regardless of what you think of the UK’s relationship with the European Union, you should consider this: the EU (Withdrawal) Bill currently passing through the British parliament puts some important social rights at risk.
Social rights are the right to health, education, an adequate standard of living (including food and adequate housing) and to social security. The UK has ratified a number of international social rights treaties, the most important of which is the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).
International treaties are legally binding for countries that voluntarily sign and ratify them. The UK and 165 other countries have done so in the case of the ICESCR. However, the UK has not yet incorporated the ICESCR into its domestic legal system. As a result of that, social rights remain relevant in the political discourse but, by and large, legally toothless.
However, people living in the UK do enjoy a number of social rights as a result of the UK’s membership of the European Union.
British laws protecting workers from discrimination and protecting their maternity leave rights, for example, come from EU directives. The European Court of Justice has developed some of these rights on equal pay for equal work and equal access to state pensions. Workers are also entitled to compensation if their EU labour rights are breached.
The UK supreme court drew on EU law when it insisted that employers have to give spouses in same-sex marriages the same pension rights as heterosexual couples. The same court also concluded that employment tribunal fees (charging people for taking action against their employers for unfair treatment) made access to justice practically impossible or excessively difficult for too many people, and that breached EU law as well. The High Court of England and Wales echoed the right to health recognised in the EU Charter of Fundamental Rights when it ruled to keep plain packaging for cigarettes.
All these steps were directly or indirectly the result of the UK being an EU member state. The EU (Withdrawal) Bill puts many of these rights at risk. In its current form the bill will erase the EU Charter of Fundamental Rights and all the protections that come with it. These protections will no longer apply to British citizens and other residents after Brexit day.
As the Conservative MP and former attorney general Dominic Grieve recently argued in parliament, the problem of the EU (Withdrawal) Bill is that equality or environmental policies, for example, will no longer enjoy the legal protection that EU membership gives them. British authorities will therefore be free to lower or indeed remove the standards that currently protect British people.
In response to this problem, the former High Court judge Michael Tugendhat has advocated that UK courts should have the power to ignore an act of parliament if it is contrary to the EU Charter of Fundamental Rights and EU human rights principles.
And to avoid losing equality rights, the House of Commons Women and Equalities Committee has said that courts should be able to declare that an act of parliament is contrary to the Equality Act 2010. Such a declaration would send a message to parliament that it should consider appealing or amending the offending act – though it would not be obliged to do so and could choose to do nothing at all.
A British tradition
Social rights have been part of Britain’s tradition for centuries and Brexit should not change that. This year marks the 800th anniversary of the Charter of the Forest, which limited landlords’ privileges, facilitated free men’s access to the common land and granted women’s rights that were revolutionary for the standards of the time. Britain is also the land of the Peasants’ Revolt of the 14th century and of the Putney Debates in 1647, the birthplace of Thomas Paine and John Stuart Mill, the stronghold of the labour movements in the 19th and 20th centuries, the country of the NHS, the home of the council house.
The UK must match these historical milestones with a categorical legal and political commitment to social rights in the 21st century.
It is not an overstatement to claim that Brexit is a constitutional juncture of unique historical relevance. As Britons look for the future they want to live in, now more than ever they must take back control of their rights. Britain should bring social rights home by incorporating international human rights law into the national legal system.