Quick thread on the Level Playing Field rules within the Irish backstop - will the withdrawal agreement safeguard workers' rights and environmental protections? From a first look I doubt trade unions or environmental groups will be too pleased (1)
First, the good news: the non-regression clauses are much stronger than normal in an FTA. Typically they are restricted to only apply when either party is deregulating to encourage trade or investment. But the UK-EU non-regression clauses apply in all circumstances (2)
They are also quite specific, highlighting a range of areas where standards shouldn't fall - e.g. occupational health and safety, information and consultation rights, air emissions and air quality targets, nature and biodiversity conservation (3)
However, it is important to note that the non-regression clauses do not require the UK to adopt the EU environmental or social acquis. Instead the UK simply has to ensure the 'level of protection' is not reduced below current levels. This is a more elastic concept. (4)
So the UK could legitimately change EU-based environmental and employment legislation as long as it can argue the new legislation provides the same levels of protections as now. (5)
In environment this is especially complex, as UK could argue legislation is 'equivalent' because it has same targets but different means of getting there - see this IEEP briefing for more ieep.eu/publications/b… (6)
Then there's the question of enforcement. On first glance this looks quite weak - responsibility is largely given to domestic authorities. Disputes on the non-regression clause can be resolved through consultation in the joint committee, but not formal arbitration procedures. (7)
But dig deeper and in fact *enforcement* of standards can be subject to arbitration. So if the UK fails to enforce the non-regression clause effectively, a dispute can be taken to an arbitration panel as a last resort. (8)
And this arbitration panel gives binding rulings, with potential scope for sanctions - so overall dispute settlement is stronger than in normal non-regression clauses. (9)
But overall, enforcement is nothing like we currently have. There is no direct role for the European Commission and the CJEU, no clear requirement to align interpretation of legislation with CJEU case law, etc. (10)
And with state-to-state dispute settlement there is a risk that neither party will prioritise addressing breaches of the non-regression clause, as it may not be in their interest. Breaches could therefore go unchallenged. (11)
Finally, there is no provision for dynamic alignment. So where the EU adopts new legislation the UK won't have to follow suit. This opens possibility for divergence in environmental and employment protections over time (12)
And to those who think this level of alignment is not possible outside the EU - compare and contrast with state aid, where the UK is required to follow EU law directly. The provisions here are much stronger. (13)
For further details, see our @IPPR paper on Brexit and workers' rights: ippr.org/publications/a… (14)
