“Serious risk” of EU-UK deal breach if review into EU retained law is pursued – TUC, IPPR and international legal expert warn

• Legal report on Brexit deal should get alarm bells ringing in government about potential breach and sanctions - TUC

If the government’s review into EU retained law is pursued and hard-won workers’ rights are ripped up, there is a “serious risk” the EU-UK Trade and Cooperation Agreement (TCA) would be breached , the TUC, IPPR and legal expert Federico Ortino have today (Thursday) warned.

Any breach of the TCA could lead to serious sanctions for the UK.

The warning comes as the TUC publishes a report by Dr Ortino, who is Professor of International Law at King’s College London. In it he sets out the  protections that apply to existing rights under the TCA – and references the Frost review as creating a potential breach if it is followed through and labour standards are reduced.

The scope of the government review, first initiated by Lord Frost, covers the status and substance of EU retained law – and includes an “accelerated process” to repeal retained EU law. The TUC has warned that this could see some essential rights removed or watered down without proper parliamentary scrutiny.

The workers’ rights at risk in the review include – among others – holiday pay, equal pay for women, parental leave and equal treatment for part-time workers.

Burden of proof

Today’s report shows that the crucial threshold to prove that reducing workplace rights affects trade and investment between the UK and EU - stipulated in the TCA as necessary for a breach of ‘level playing field’ commitments – might be easier to meet than first anticipated. Dr Federico Ortino argues that:

• Any weakening of workers’ rights and protections which has the potential to affect competition in trade and investment between the UK and EU could be enough to find a violation of the TCA.
• One individual event of regression could alone be sufficient to support a finding of violation of the TCA.

In December last year, the TUC wrote to the Brexit minister Liz Truss and business secretary Kwasi Kwarteng to ask for assurances that workers’ rights would be protected given the remit of the Frost review. The union body is yet to receive a response to the letter.

The IPPR has also published its briefing on the TCA today, which warns that the UK also risks 'passive divergence' with the EU, whereby the UK falls behind EU progress being made on workers' rights.

Early signs suggest the UK could already be failing to keep pace with recent proposals by the European Commission on protecting platform workers and promoting collective bargaining, especially given delays to the UK's own employment bill.

Future 2026 review

The report by Dr Federico Ortino also looks ahead to the review of the Trade and Cooperation Agreement in 2026 and sets out various options in order to improve the agreement’s protection of workplace rights, including the following:

• Eliminating the requirement that violations of Level Playing Field commitments affect trade or investment.
• An obligation to keep the pace on workers’ rights with the EU so that any improvements to workers’ rights made by the EU are at least matched by the UK.
• A rapid response mechanism, which would allow sanctions to be imposed on goods from individual companies if they are found to be violating workers’ rights.
• Enabling trade unions to launch a case directly if workers’ rights are being abused.

TUC General Secretary Frances O’Grady said:

“This report should get alarm bells ringing in government.

“If ministers follow through on the review into EU retained law and rip up hard-won rights, there is a serious risk the EU-UK deal would be breached – leading to significant penalties.

“That wasn’t the promise the prime minister made to us. He said he would protect and enhance labour rights post-Brexit and make Britain the best place to work in the world.

“But it is the EU that is boosting workers’ rights – not the UK.

“It’s time the prime minister delivered an employment bill to upgrade workers’ rights and clamp down on exploitative work practices like zero-hours contracts.

“And this government must show it respects the international agreements it enters into instead of riding roughshod over commitments it has made.”

Dr Federico Ortino, Professor of International Law at King’s College London, said:

"While the enforcement mechanism in the EU-UK TCA is still very much in the hands of the two contracting parties, the TCA represents one of the most advanced trade agreements when it comes to workers' rights commitments undertaken by the contracting parties – and it thus provides opportunities for trade unions and other civil society in the EU and UK to hold their governments to these commitments."

Marley Morris, Associate Director at IPPR, said:

"The government says it wants to make the UK the best place in the world to work after Brexit, but already there is a risk we are starting to fall behind our EU neighbours.

“The UK should aim to match EU proposals on protecting platform workers, promoting collective bargaining, and improving enforcement of the minimum wage.

“Seeking to deregulate our labour market would be bad for workers and make an already rocky relationship with the EU even more acrimonious.

“But by forging ahead on tackling unfairness at work, the UK can lead the way on workers' rights for our nearest neighbours."