Conservative Party seeks new UK opt-out from EU employment legislation

In November 2009, the opposition Conservative Party announced a new policy towards the EU following the ratification of the Lisbon Treaty. Among other things, a Conservative government would seek the reintroduction of a United Kingdom opt-out from EU employment legislation and a ‘complete opt-out’ from the Charter of Fundamental Rights. Reaction from business groups was mixed, while trade unions saw the party’s objectives as ‘undeliverable’.

On 4 November 2009, the leader of the opposition Conservative Party, David Cameron, made a speech on A Europe policy that people can believe in, in which he set out the party’s response to the final ratification of the Lisbon Treaty.

Key commitments

Accepting that the party’s campaign for a referendum on the Lisbon Treaty in the United Kingdom (UK) was over, Mr Cameron set out the steps that a future Conservative government would take to ‘protect Britain’s interests in Europe’. These included:

  • amending the European Communities Act 1972 to ensure that a UK government could no longer transfer further powers from the UK to the EU without holding a referendum;
  • enacting a UK Sovereignty Bill ‘to make it clear that ultimate authority [over UK laws] stays in this country, in our Parliament’. As a precedent, Mr Cameron cited the role of the German constitutional court in overseeing the application of EU law in relation to the German constitution.

A Conservative government would also seek to negotiate ‘guarantees’ with the UK’s European partners over powers that the party believes ‘should reside with Britain, not the EU’, notably:

  • in the area of employment regulation, the Conservatives ‘want to negotiate the return of Britain’s opt-out from social and employment legislation in those areas which have proved most damaging to our economy and public services – for example, the aspects of the Working Time Directive which are causing real problems in the National Health Service and the fire service’;
  • the party also wants to secure ‘a complete opt-out’ from the Charter of Fundamental Rights of the European Union: ‘We must be absolutely sure that [the charter] cannot be used by EU judges to reinterpret EU law affecting the UK’, emphasised Mr Cameron.

Reaction to policy statement

Business groups gave a mixed reaction to Mr Cameron’s speech. The Director-General of the Institute of Directors (IoD), Miles Templeman, stated: ‘We would be delighted if any British government was able to find a way to end the flow of [EU] employment legislation permanently. If this means having some tough negotiations with our European partners so that we can win an opt-out, so be it.’ The Confederation of British Industry (CBI) did not publish a press statement but, according to the Financial Times, the CBI’s Deputy Director-General, John Cridland, ‘welcomed the opt-out proposal and also supported a complete opt-out from the Charter of Fundamental Rights’.

However, the Director-General of the British Chambers of Commerce (BCC), David Frost, said: ‘Business wants a pragmatic approach to the EU – not an ideological one’. The proposed labour law opt-out was not ‘realistic’ and the BCC preferred a ‘moratorium on any new employment legislation’. The Head of employment policy at the manufacturing employers’ body EEF, David Yeandle, commented that the opt-out was ‘fine in theory but difficult to do in practice’, according to an article in the Financial Times.

The Trades Union Congress (TUC) General Secretary, Brendan Barber, emphasised that an opt-out from EU employment law ‘would require unanimous agreement from every other EU state’. The Conservative leadership ‘[threatened] to take popular rights away from employees’ but would ‘disappoint their Euro-hostile grass-roots when they find it next to impossible to deliver’.

Commentary

There is considerable ambiguity over key elements of the Conservative Party’s EU policy. For example, it is unclear whether it would seek a broad opt-out from the EU treaty’s employment provisions – similar to the UK’s previous opt-out from the social chapter of the Maastricht Treaty, which ended in 1997 – or a more selective approach. Perhaps the latter is implicit in Mr Cameron’s detailed language on the opt-out, which focuses on the ‘most damaging’ aspects of EU regulation and only cites the Working Time Directive (which was not in fact covered by the original UK social chapter opt-out). Moreover, Mr Cameron’s stated aim of ensuring that the Charter of Fundamental Rights cannot be used to reinterpret EU law affecting the UK would appear to be met by the terms of the existing UK opt-out from its legal enforceability (UK0707049I).

Other EU countries may be relieved that Mr Cameron has dropped any short-term threat to hold a referendum on the UK’s relationship with Europe. But, to the extent that the Conservative Party’s objectives imply changes to existing treaty provisions, the UK’s EU partners are unlikely to want to reopen negotiations after such a difficult and protracted ratification process for the Lisbon Treaty.

Mark Hall, IRRU, University of Warwick

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