Hello, this is Febz Talks, the podcast series of Febz, the Foundation for European Progressive Studies, the Social Democratic Think Tank. My name is Lasla Wander, I'm the Secretary-General of Febz and I have the pleasure today to welcome in our Febz headquarters Professor Catherine Barnard. Welcome Catherine. Thank you, it's lovely to be here. Thank you so much for coming. For those who may not know, Catherine is a professor of EU law and employment law and a
fellow and senior tutor of Trinity College in Cambridge. She's written many books but if I can highlight one, it's titled The Substantive Law of the European Union, The Four Freedoms. It's a
very catchy title. There have been several editions of this book and those in Brussels in the law profession may know that Catherine is a member of the European Commission-funded European Labour Law Network and she's also a Deputy Director of the UK in a Changing Europe which is an authoritative non-partisan think tank which does research and provides information about all aspects of Brexit and this is what we are interested in, all aspects of Brexit because that's what we
discussed in the last 10 years but definitely since 2016. You have appeared on many radio programs also in the UK and university panels to discuss the causes and the consequences. But let me tell you this, I think since 2016 the way it has unfolded, it really has been a matter of huge concern not only in Brussels but for many other European Union countries.
Has this become a kind of cautionary tale for European Union member states to avoid playing this game, that the European Union is blamed for everything and when it comes to a decision-making point people actually believe that it was because of the EU that this and that aspect of life became
just overly complicated? I think it is a cautionary tale and I think we do see the fact that now the UK cannot blame the EU for everything, means that the responsibility for things that go well and go badly arrested at the door of the British government but what you still see for example in Scotland when things are going badly they blame Westminster and in London and of course you also see other states doing just that, Macron has been blaming the EU for the difficulties he's been
experiencing. Now I think Brexit is a cautionary tale in a different way in that I think you could say that Brexit was a bit like a canary in the coal mine. Now of course there were lots of reasons why people voted to leave the European Union, quite a lot had nothing to do with the EU at all, about unhappiness with their own lots and how the state, the government wasn't listening to them but also there were things that were going wrong that they didn't feel the government was addressing and
I think migration actually was one of them. Now when we talk about migration of course what we meant at that stage was EU migration but as we know for the on the European stage it's not just inter-EU migration but it's also migration from outside the EU and how to control borders and while it was a big issue for the UK in up to 2016 what we're seeing in other member states that the EU is a really growing concern about the implications of migration and that's why you're seeing a rise
in the parties on the right. Well indeed migration was a major talking point not least for the then UK Independence Party, UKIP, but if we look at the causes of unease or even unrest in the UK the austerity policies of the Cameron government as pursued by Osborne, the Chancellor, were also playing a role and is it the case that migration was a kind of discussion which was easier for many
than discussing austerity and developing an alternative to that? That's really interesting so I've been working in a place called Great Yarmouth which is an impoverished seaside resort on the east coast of England and it had a very large number of EU migrants working in Great Yarmouth, they're working in chicken factories and on the in the fields and farms around Great Yarmouth and Great Yarmouth had the fifth highest leave vote in the United Kingdom and it was easy to say
well that was because of uncontrolled migration but in fact the coastal seaside results were far more heavily hit by austerity than the big metropolitan centres and so it was a lethal cocktail in fact because the cake was already shrinking because of austerity and the perception was that the cake was actually being divided up ever more thinly because there were more mouths to feed not just local mouths but also those who were migrating and working in Great Yarmouth.
Now of course the picture was more complicated than that because they were the EU migrant workers who were working in Great Yarmouth were of course doing jobs so they were contributing to the economy and they were doing jobs that British people absolutely did not want to do and the striking thing post-Brexit is that some of those factories are closing down because they cannot get started.
If we look back to 2016 for a variety of the reasons but the results emerged which eventually took the UK out of the European Union but many of us had the impression that in reality the British people those 52% they voted against something but not necessarily for something. My question would be whether since this period the UK has found what it wants to be or what it wants to do in a positive
sense. Is there a kind of positive definition of a kind of broad consensus among the British people? No it's a simple answer. I mean you're absolutely right the genius of the leave campaign was that it could be all things to all men and women and so if you wanted a sovereignty first Brexit it was there.
If you wanted a mercantilist free trading Brexit it was there. If you wanted a big state Brexit take back control keep migration down it was there and of course these things were often mutually exclusive or also perhaps somewhat naive in the modern world and what we've seen post-Brexit is that there is all the talk about the UK being a regulatory superpower and setting standards this hasn't happened because the EU does it better and is more powerful and so in fact
there has been really very little substantive regulatory divergence from EU rules and indeed just before Christmas it was the Treasury said actually we're not proposing to diverge further on SPS Sanitary and fighter sanitary matters and so we are staying very close to the EU.
The timing for Brexit couldn't be worse either because just when the UK was talking about being an outward looking and trading nation and entering into free trade agreements with other parts of the world it happened to coincide when other parts of the world were closing down and looking in on themselves and so for example all the talk about a trade deal with the United States something that the EU does not have well that now turns out to be for the birds.
Trade deal with India may happen but the EU is also getting there too. The trade deal with Australia and New Zealand which were seen to be quite big prizes well in fact it's thought they will only deliver 0.01% of GDP compared to about 5% loss of GDP that's come about as a result of
Brexit. Which creates the impression that in reality Brexit is a journey which might never end it might be a transition but for a very very long time somebody coins this for a Brexit eternity that the UK governments one after the other would just continue to negotiate to quarrel with the EU institutions and we would never reach some kind of settled relationship between the UK and the European Union just remain in this perpetual process back and forth changes sometimes
bringing up Northern Ireland and then the day after fish and then migration and then something else
and how do you see this? I certainly agree with you that Brexit is a process I'm not an event I think where I would somewhat disagree with you is that there is something of a mood shift in recognising that in fact the UK does need to have good relations with its closest and largest trading partner all the more so in the light of the current geopolitical situation and I think that there's much talk in the UK at least that if there is a change of government at the end of the year
so if the Conservatives are voted out and the Labour Party are voted in and they have a substantial majority then there might be an opportunity to somewhat reset the agenda now Kirstama has already ruled out returning to the single market and customs union so that already rules out quite a lot of proximity but what he has not ruled out is some role for the European Court of Justice so his red lines are less sharp than Theresa May's red line she was the Prime Minister who was
Prime Minister in the immediate post-Brexit period and then Boris Johnson who also had some pretty tough red lines now as far as Northern Ireland is concerned I think we've got to give some credit where credit's due Rishi Sunak has put a lot of personal capital into trying to come up with some solution about the Northern Ireland border the fact that Stormont the Northern Ireland Assembly met for the first time in two years on Saturday last week is actually an immense achievement
because things were really very bad indeed in Northern Ireland and to see the picture of a Sinn Fein First Minister and a DUP Democratic Unionist Party Deputy First Minister sitting next to each other was actually a really very emotional moment and a real moment of hope for Northern Ireland and the very fact that Rishi Sunak and Chris Heaton Harris put so much effort into it which will give them no credit in Westminster is actually to their great credit and I think the EU has also
played a rather sophisticated game so there is damage limitation which we can talk about but I think if we compare it to the capacity of the United Kingdom to pursue its interest within the European Union when it was an EU member there is no comparison because I think we should not forget that the United Kingdom when it was an EU member stayed away or had a kind of tailor-made approach to many policies you can remember Schengen you can
recall the case of the single currency working time directive budget debate not debate but rebate so there were many many examples of the UK kind of tailoring the EU policy to itself which probably is not possible anymore but in reality my question is this what role in this in your view the the social questions played because I think the UK did not only represent and maintain a skeptical view about currency union but also what we call the political
economy of the continent basically a social market economy in which there is a very clear case for social policy coordination social legislation and And that also for some might have been a kind of alienating factor. How did you see that in those times? And how do you see it now? It's complicated. So you're absolutely right. Those who were strong advocates of Brexit laid a lot of blame against the EU social policy, particularly the rules on working time and the rules on agency work.
So those were the two directives. And it was widely thought that once Brexit happened, the UK implementation of those rules would be ripped up and that would be the end of it.
The trade union movement was also somewhat divided, because on the one hand, they appreciated the good directives that came out of the EU and were supportive of the EU, particularly when Margaret Thatcher was Prime Minister, who appeared to be hell-bent on dismantling our social model, having EU rules there to try and provide some sort of safety net, which seems a good thing by the trade union movement.
However, the trade union movement were very upset by the Court of Justice decisions in Viking and Laval. And there was quite a strong lexit movement. So that's labor for exiting or the left for exiting the EU. And the lexit movement pointed to the decisions in Viking and Laval. You remember those are the cases about the four freedoms being applied to the strike laws in Scandinavia and Sweden and Finland.
And they argued also that the four freedoms actually meant that the UK could employ a cheap foreign neighbour from the Czech Republic, Slovakia, Latvia, Lithuania and so forth. And we were not training our own people. So there was quite a strong lexit movement in the trade amongst the trade unions, too. What's happened since, what is remarkable is that, remember, those working time regs and the agency work regs, they haven't been torn up. There has been quite a lot of noise about them.
And recently they have been amended slightly. But the essence of the rules are still there. And even this government, the Conservative government, are saying we will maintain workers' rights. Now, it may be they're doing it for political reasons because they want to hang on to the so-called Redwall seats, the seats of normally vote Labour and voted Conservative in the 2019 election.
It may be that they are worried about the EU using the level playing field provisions in the trade and cooperation agreement. And the level playing field provisions essentially say that if the UK diverges too significantly on social matters, that can eventually lead to a process which leads to tariffs. But the fact is we have not seen a total demolition of what were EU employment rights. Which is a good thing. Certainly for workers, it absolutely is a good thing.
And the UK government would say, actually, we go further than EU law, which we do in some areas, absolutely, with new legislation coming in. That's exactly where I would like to go, because I think there is an expectation in the European Union that every political cycle allows for some further development of employment law in the European Union. And in 2015, we were together on a conference in Cambridge, which produced a big, big book, which you co-edited for a European social union.
And I wonder how you would like to comment on this concept, because one of your co-editors, Frank van den Bruecke, but also many others, maintained the discourse and the vision of a social union. Is this, in your view, an academic discourse? Or is it a kind of genuine program that can be fulfilled by more and more robust EU social policy coordination or EU social dimension?
And I'm asking also this because of the Brexit context, that after the Brexit vote, one year later, the EU came forward with the European Bill of Social Rights. In my view, this would not have been possible in such a comprehensive way, without Britain deciding to leave. And at least in principle, Europe could be more coherent to go for a social union now that the British skepticism in this field does not apply. I think you're right there.
And I think the pillar on social rights has delivered some good things, I mean, not least the minimum wage directive. It's still struggling somewhat, because as we know, the platform work directive, which is intended to give rights to those working in the gig economy, is they're really struggling to reach agreement on it.
I know the Belgian presidency are really trying to pull out all the stops at the moment before the, essentially, the curtain comes down in anticipation of the European Parliament elections. I think the EU let workers down to the extent that throughout the period of the crisis, it was quite clear that the social dimension of the EU and thus in the member states was being significantly eroded. You look at what happened in Portugal, you look at what happened in Greece.
Now, of course, the argument is pragmatism, Troika, had to act quickly to prop up those economies, but it did come at the price of workers. And I think the very fact that there wasn't a key and very clear commitment to some form of social union meant that the economic union was always able to trump any social considerations. I also think it's complicated by the fact that when the EU was first established, social policy was very much seen as a national competence.
And the delivery of the four freedoms was seen as EU competence. And it was never thought the two would mix. Now, of course, that was probably naive, or maybe it was just because they had a very limited vision of what the European economic community, as it then was, would deliver.
But with the European Union in its much more sophisticated state, which also has a single currency for the majority of the states, without having underpinning social tenants, it was always likely to be the case that social would get trampled in favor of the economic priorities. And that's exactly what we saw in the period of just after the financial crisis. And that had a legacy effect and, of course, also fed into the lexit debate that was referring to before.
Look how the EU in a time of crisis treats Greece. So I think it's from it's important that the EU has a social union, a very strong social commitment, and that's where the pillar on social rights is a good thing. And the fact is it also has an action program and it has delivered some things. The interesting question is how far can the EU go? Have has the EU actually sort of maxed out its credit card? Has the EU has has the EU is there is how much further can the EU go?
Particularly if the in the next European Parliament, it's dominated by the right and the central right. Well, exactly. We can ask this question in more concrete terms, because I think in the last five years, some would argue the EU went beyond what was expected, what a lot of people would have assumed to be possible at all. A lot of people five or six years ago would have said that it was impossible to have a directive or minimum wage coordination.
And there can be other examples as well, like balance, for example. So where do you think it can still evolve? What kind of examples you could give, like minimum income, for example, where there is certainly demand for the EU to act to intervene. But of course, you know, it is also a legal debate all the time, whether something is on the grounds of the existing treaty possible or not. So I agree with you.
I think I mean, if you'd asked me five years ago, would we have a directive on the minimum wage? I would have laughed at you. I mean, not least the court of the legal basis issues, which we know was highly was difficult. But the fact is the EU proceeded and made good progress. Now, you can see there are areas where the EU could go a bit further.
So, for example, in respect of equality directives, the equality directives would be covering goods and services for those which areas which are not already covered. So the directive 2078 should be should be pushed further. So you can tinker around the edge with existing measures. So the question is, what's the next big stage? Now, the trade union movement would say, well, where the EU is really not delivered is in respect of social dialogue.
But of course, again, there's a competence issue, which makes it more difficult for the EU. Where I think the EU is doing something very interesting, and I think it's been unrecognized and the EU has perhaps not recognized itself the implications for labour law is when you're looking at the platform work directive, if it gets adopted.
But also, if you look at things like the digital services, Act Digital Markets Act, particularly the Digital Services Act, helping those who are not traditionally seen as workers. So people who are influencers and content creators, all of these people are selling the services online. It was so dependent on these platforms. And what happens is the platform suspend them for whatever reason, because they've breached the community guidelines on those platforms.
EU is already providing remedies to these people. But they're not they're not singing this from from the treatise to say, look, we're doing good things, not just traditional workers, but to those who are in the new, new world order, which is digital digital provision of services. I see. So the conclusion is that social policy should not be looked at as a fringe policy as a sector in itself.
But we need to look at a broader social dimension of all EU policies, whether we speak about the single market, whether we speak about trade or the monetary union. And there is a lot to do on the social dimension of the EU as a complex system. Absolutely. And I would say furthermore that we need to recognise that the traditional forms of work. The employer worker, the employer worker divide absolutely affects many millions of workers across the EU.
But there's an awful lot of people who are now consider themselves self-employed. They may be genuinely self-employed, but they are still very dependent on certain platforms or certain work givers. So what protection are they getting? And this is where I think the digital services act. Interesting, because I think they get some protection under that.
And so we look at I think the problem is that we risk getting stuck in a rut that we think about employment law entirely in the context of what we saw last century, which is the sort of employer, worker, the dependency and so forth. Lots of people are in that situation, but an awful lot aren't. An increasing number of people are self-employed, pretty dependent self-employed. And therefore, we need to be thinking more broadly about who should be protected by employment law.
Thank you so much for this conclusion. I think we touched upon a lot of interesting issues from Brexit to employment law. Professor Catherine Barnard, I hope that we will have many other opportunities as well to discuss this, how in the next cycle the social law develops and perhaps also about the relationship of the UK and the European Union, which might indeed enter a more optimistic stage of cooperation after the elections of this year. Thank you very much indeed for inviting me.
Thank you. [Music] [BLANK_AUDIO]