Labour is barking up the wrong tree

There has been much talk this week of "level playing field" - chiefly workers rights. There's a lot to unpack here. The basic nature of Labour's manufactured niggle with the withdrawal agreement is the childish presumption that without provisions guaranteeing a minimum array of rights the Tories will prune back those rights to Victorian levels (women down mines and children up chimneys).

Firstly we should note that there wasn't much wrong with existing workers rights before the onslaught of EU rules that couldn't have been addressed by our own democratic processes and institutions. I also think that a number of measures designed to improve rights had the complete opposite effect. It's no coincidence that permanent work became harder to find. Every intervention has unintended consequences.

But there's also a lot that needs to understood about EU "workers rights". Every intervention has a specific purpose and usually it's got nothing to do with workers rights at all. Unions are in the business of improving workers rights for its own sake whereas the EU uses them for a number of political objectives. Primarily they serve as a tool of integration (and subsequent appropriation of powers) but they also serve as a handy means of trade protectionism. They are also very obviously of great propaganda value of the EU as we have seen this week.

But this is where the EU pulls a fast one. The EU claims that there is no mass of legislation emanating from Brussels, choking businesses to death as the Tories would have it. The bulk of legislation that regulates the labour market, they claim, is of national origin. "European laws simply set down minimum standards for health and safety at work and deal with matters such as the right to free movement of workers, equal rights for men and women at work and some labour law which deals with certain rights in specific situations such as collective dismissals, or where a company changes hands or when an employer becomes bankrupt".

The claim that rules are of national origin is always something of a deception in that directives instruct member states to legislate according to parameters defined by the EU so the origin question is never clear cut. This runs throughout the whole debate about where our laws really come from. The thrust, though, is toward "ever closer union" and harmonisation between member states. 

One such instrument being the Posted Workers Directive which regulates a practice used between companies located in different countries. A worker is posted when their original employer sends them to work, for a temporary period, in another company. Posting has been defined as a specific form of labour mobility within the EU. It generates extensive controversy due to fraudulent practices hampering the enforcement of existing regulations. Changes in the location of work raises various questions - namely, who is the employer and which national regulations apply. The use of temporary agencies, subcontracting and posting of self-employed workers gives rise to additional problems.

This is something of a beneficial crisis for the EU which uses something that affects only 1% of the workforce to drive harmonisation on maximum work periods and minimum rest periods, minimum paid annual holidays, the minimum rates of pay, including overtime rates, gender equality, the conditions of hiring-out of workers and health, safety at work. Initially it started out as a set of minimum standards but over the years has evolved into a rigid schema of legislation which is no longer an exclusive competence of member states.

Cutting to the chase, once something becomes an EU competence and the EU is the supreme authority, national parliaments lose the ability to define their own rules and certainly not without checking with Brussels first. Our own rules can be struck down if they in any way interfere with the integration agenda. Ultimately the EU single market envisages a homogenised labour market throughout where the same job has the same pay and conditions wherever you go.

In theory that's great but in practice it neuters national unions who then have to operate as lobbyists at the European level. They then become obedient cogs in the machinery while traditional union activity is replaced by works councils - widely adopted by corporates to freeze out unions. Workers rights, therefore, are largely a technocratic mechanism for the balancing of an economic programme and not done altruistically. If we had a Labour movement worth speaking of, it would strongly object to being sidelined by the EU.

Instead of leaping on Brexit as an opportunity to revitalise the union movement and "take back control", the Labour party sees the EU as a guarantor of those minimum standards - a safe locker where advances (for what they are worth) are bound up in an external treaty. They're working on the presumption that Labour won't be taking power any time soon. Instead of addressing why that might be, they work to neuter Brexit instead.

But then to a very large extent Labour is barking up the wrong tree this week. Though the level playing field provisions have been removed from the withdrawal agreement and shunted into the political declaration, they needn't worry. This has been done to give Johnson an illusory victory knowing that no future relationship treaty will be agreed unless there is a competition policy chapter.

The fact, though, that these provisions come under competition policy of itself should inform Labour (had they bothered to check) that the workers rights are more to do with trade than ensuring Janine in accounting has a VDU assessment and a foot pedestal for her arthritis. Had they looked at any EU FTA they'd see that the provisions largely employ International Labour Organisation standards which for the most part are geared toward stamping out the more egregious practices found in developing countries such as child labour and compulsory labour. Not exactly a high bar for the UK to reach or maintain. 

As with most other chapters of modern EU FTAs on standards, be they food standards or vehicle safety standards, the FTAs only really reaffirm existing global conventions. The same is true of competition rules. The EU-Japan FTA states "The Parties reaffirm their obligations deriving from the International Labour Organisation". Much of the text is lifted verbatim from multilateral agreements that the UK would be an independent signatory to even on a no deal basis.

The fact is, if Labour wanted to retain the high level of labour governance that goes with EU membership then they should have campaigned for an EEA Efta solution. Leaving the single market means leaving the European regulatory ecosystem and all the social flanking policies. Labour assumes that level playing field provisions provide the same guarantees when in fact they're arguing for the "WTO rules" of labour rights. A minimum framework that provides no real guarantees at all. Even with the "level playing field" provisions, the Tories can still have a field day with deregulation. 

As it happens the Labour party is just looking for any excuse to derail the withdrawal agreement and latching onto anything that sounds remotely plausible. One should also note that if this was their sticking point they should have voted for May's deal when they could. But then by now it should be abundantly clear that Labour is opposing the deal for its own sake. For the progressives in Labour, these parlour games are more about stopping Brexit than any heartfelt concern for workers rights. Corbyn just gets dragged along with it because he's a coward. Ultimately you could give Labour whatever they demanded and they would still go fishing for something else to object to. They're taking us for fools.