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15 August 2018
Although massively contentious, the government's white paper proposals on the relationship between the United Kingdom and the European Union post-Brexit add some flesh to the bones of what future interrelation between the two entities may look like. But what are the key points for employment lawyers?
The publication of the white paper on 12 July 2018 marked another important step in the government's attempts to give Brexit concrete legal form, following the passage of the EU (Withdrawal) Act in June 2018 (for further details please see "EU (Withdrawal) Act – what does it mean for employment?"). Admittedly, the proposals must now avoid being derailed by divisions within the Cabinet and the Conservative Party, as well as opposition in Parliament.
Putting those doubts aside, the impression given by the white paper is that the United Kingdom intends for many things to carry on much as they are, but with different institutional form centred on a new association agreement. A governing body would provide political direction for UK-EU relations, while a joint committee would "underpin its technical and administrative functions". The United Kingdom would pay for continued membership of several EU agencies and bodies and would follow many EU laws (the common rulebook for trade in goods has been a particular focus of public discussion), while accepting that it would no longer have a vote on them.
Significantly, there is a commitment to non-regression principles – specifically, a "non-regression requirement for domestic labour standards". This means that legislation should not be changed if it reduces the level of protection afforded to collective and individual rights. The United Kingdom adds that both sides should "uphold their obligations deriving from International Labour Organisation commitments".
This is interesting because there has been plenty of speculation about a so-called post-Brexit 'bonfire' of employment protections, including the working time rules, the Agency Workers Regulations and uncapped discrimination damages. The white paper makes this outcome far less likely and potentially legally impossible.
While making clear that free movement of workers must come to an end, the United Kingdom nevertheless wants to agree on a framework for mobility in order to "support businesses to provide services and move their talented people". This includes agreeing to "reciprocal provisions on intra-corporate transfers that allow UK and EU-based companies to train staff, move them between offices and plants and to deploy expertise where it is needed, based on existing arrangements with non-EU countries".
The United Kingdom also wants to discuss how to facilitate the temporary mobility of:
The government believes that there should be "reciprocal arrangements on the future rules around some defined elements of social security contributions", and in particular that "workers should only pay social security contributions in one state at a time".
Even if the white paper proposals manage to survive domestic political tensions and schisms, they merely represent the United Kingdom's initial negotiating position. There is no indication yet how the European Union will respond, although there will likely be serious concerns about the European Union crossing its own negotiating red lines by allowing the United Kingdom to cherry pick aspects of the single market.
Nonetheless, the white paper at least provides some tangible detail as to how the future UK-EU arrangements might ultimately materialise in specific areas – "might" being the operative word.
For further information on this topic please contact Colin Leckey at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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