Occupational Health Law. Diana Kloss
enacted under this power.
Conflict arose between the majority of European governments who regarded the protection of the worker as an important aim for social legislation and the free marketeers in the UK government who preferred to allow market forces to determine workers’ rights unfettered by what they regarded as artificial barriers to economic growth.
In December 1989 11 Member States signed a Community Charter of Fundamental Social Rights of Workers (the Social Charter). This was largely a declaration of policy, without direct legal effect. The UK government stood alone in refusing to agree to the principle that workers’ rights should be enshrined in European law and did not sign the Charter. The Charter’s provisions are expressed in general aspirational terms. It deals with minimum wages, working hours and holidays, rights of association and the right to negotiate and conclude collective agreements.
At the meeting of governments at Maastricht in December 1991, the majority of Member States agreed that they wished to adopt further measures to pursue the aims of the Social Charter. Again, the UK government was in a minority of one. The compromise eventually reached (the Maastricht Protocol) was that all 12 Member States agreed that 11 states (all except the UK) might have recourse to the institutions, procedures and mechanisms of the Treaty of Rome for the purposes of taking the acts and decisions necessary to give effect to the new agreement. The UK government would not participate in this process, though it would not interfere with the 11, and it would continue to comply with pre‐Maastricht legislation.
The political and social problems created by this two‐tier system were many. In particular, its implementation was thought to result in the British worker becoming the poor man of Europe, with significantly lower wage rates and reduced legal protection against exploitation by the employer, although increased trade through the production of more competitive goods increased general prosperity. There were signs that multinational companies looked favourably at siting their plants in the UK to take advantage of lower rates of pay.
The legal problems were formidable. It was not easy to differentiate between the various types of legislation. Take, for example, the Working Time Directive, which created minimum daily and weekly rest periods and annual paid holidays of a minimum length. If, as the Commission argued, this was as a health and safety measure it could be passed by a qualified majority without the consent of the UK government and must then be enacted into UK law. If it were to be classified as a ‘workers’ rights’ measure, it might either fall within what is now Article 95, in which case it could only become law if all the Member States agreed, or alternatively (but less likely) it could be regarded as an attempt to implement the Social Charter falling within the Maastricht Protocol and therefore not involving the UK at all.
This issue was litigated in the European Court in 1996. In United Kingdom v. EU Council the European Court held that ‘working environment’, ‘safety’ and ‘health’ should be interpreted liberally to embrace all factors (physical or otherwise) capable of affecting the health and safety of the worker in his working environment. Legislation on rest periods, holidays and night working was held to be relevant to health, defined by the World Health Organization as ‘a state of complete physical, mental and social well‐being and not merely the absence of disease or infirmity’. Thus, the Working Time Directive was mandatory on the United Kingdom.
The Social Charter and the Maastricht Protocol emphasised the principle of subsidiarity, namely that the Community must recognise the differing social structures and the diversity of national practices of the Member States, and legislate only where it is necessary to achieve the objectives of the treaties. There can be no Union‐wide minimum fair wage, because of the many differences in cost of living, incidence of taxation and social security etc., but there can be the espousal of the concept of a legally guaranteed fair wage for each individual country. The Labour government elected in May 1997 adopted the Social Charter for the United Kingdom, and introduced national minimum wage legislation. In the Treaty of Amsterdam 1997 the UK government agreed to accept qualified majority voting for all Social Charter Directives in the future, and to adopt those directives already agreed by the other Member States after Maastricht. These were the European Works Council Directive, the Parental Leave Directive, the Part‐Time Workers Directive and the Directive on Burden of Proof in Sex Discrimination cases.
The previous Conservative government expressed concern that, at a time when it was pursuing a policy of deregulation on the home front with the aim of freeing industry from petty legal restrictions which deter growth, new and onerous duties were being introduced through membership of the European Community. ‘Health and safety legislation could be brought into disrepute by introducing bureaucratic requirements which would not be complied with’ (Review of implementation and enforcement of EC law in the UK (1993) Department of Trade and Industry). The DTI report recommended the designation of one of the Health and Safety Commissioners as especially concerned, as far as possible, to look after the interests of the small employer. In 2000 a report from the Department of Environment, Transport and the Regions stated that ‘a more deeply engrained culture of self‐regulation needs to be cultivated, most crucially in the 3.7 million businesses with less than 250 employees’. The development of a Better Regulation strategy which followed is discussed in Chapter 5.
The implementation of EU law is for the Member States, who must adjust the European principles to their own domestic institutions, but the essence of the principles must reach the statute book. In recent years there have been fewer directives in the field of health and safety at work. The European Commission has engaged in an evaluation of the whole body of occupational health and safety legislation with the aim of simplification and reducing unnecessary burdens on small and medium‐sized enterprises.
Brexit
In June 2016 the British people voted on whether they wished to remain in or leave the European Union. By a small majority they voted to leave. By Article 50 of the Treaty of Lisbon a Member State may decide to withdraw from the Union in accordance with its own constitutional requirements by giving a notice of its intention to withdraw. If a withdrawal agreement is concluded it will leave from the date of the agreement but, failing an agreement, two years after the notification. In R (on the application of Miller) v. Secretary of State for Exiting the European Union (2017) the Supreme Court held that the Prime Minister needed the approval of Parliament to trigger Article 50 because it involved repealing the European Communities Act.
Article 50 was triggered in March 2017 to expire on 29 March 2019 but it proved impossible to achieve a withdrawal agreement that could command the approval of a majority in the House of Commons. The period was extended to expire on 31 October 2019, and further extended to 31 January 2020. The agreement negotiated by Mrs May, then the Prime Minister, included a transition period until the end of 2020 during which the UK would remain subject to EU law while issues like trading agreements, customs arrangements, particularly on the border between Northern Ireland and the Republic of Ireland, were resolved. In the event that no deal was agreed the UK would leave the EU without any such arrangements being put in place. Mrs May resigned as Prime Minister in the summer of 2019 and the Conservative Party elected Boris Johnson as its new leader. Johnson negotiated a new withdrawal agreement which achieved a majority in the House of Commons but this was followed by a General Election in December 2019 in which the Conservatives were re‐elected with an overall majority. The UK formally left the EU on 31 January 2020, allowing eleven months of transitional negotiations.
Over the nearly 50 years that it was a Member State, much of UK law reflected legislation and case law from Europe. If those laws automatically ceased to have effect on withdrawal day, that would leave an enormous void which would take years to fill. For that reason, arrangements were put in place to preserve legislation and case law derived from EU sources unless or until it was replaced by primary or delegated legislation from the Westminster Parliament or decisions of the Supreme Court. The European Union (Withdrawal) Act 2018, which takes effect the day after the UK leaves the EU, repeals the European Communities Act, places all EU legislation into UK legislation immediately and withdraws devolved powers from Scotland, Wales and Northern Ireland for a period of two years. If there is a transition