'Can Free Movement of Workers be Stopped?': Catherine Barnard (audio)
Duration: 11 mins 23 secs
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'How can the government stem the tide of migrant workers coming to the UK?'. This question has been asked with increasing vigour by those who perceive immigration as a threat rather than a benefit to the UK economy. In this video, Catherine Barnard considers whether it is possible to restrict free movement of workers under EU law, both as it now stands and going forward.
Professor Barnard is Professor of European Union Law and Jean Monnet Chair of EU Law. She has written extensively on EU Law and Labour Law, and has been involved in advising the UK Government as part of its balance of competence review. For more information about Professor Barnard, please refer to her profile at http://www.law.cam.ac.uk/people/academic/cs-barnard/9 Law in Focus is a collection of short videos featuring academics from the University of Cambridge Faculty of Law, addressing legal issues in current affairs and the news. These issues are examples of the many which challenge researchers and students studying undergraduate and postgraduate law at the Faculty. This entry provides an audio source for iTunes U. |
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| Created: | 2014-11-06 22:09 |
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| Collection: |
Law In Focus
Cambridge Law: Public Lectures from the Faculty of Law |
| Publisher: | University of Cambridge |
| Copyright: | Mr D.J. Bates |
| Language: | eng (English) |
| Keywords: | EU; European Union; Free Movement; Labour Law; |
Transcript
Transcript:
I am going to talk today about free movement of people in the European Union. You probably know it’s become a toxic issue but you have probably taken advantage of your EU rights to free movement; you’ve been on holiday no doubt to France or Germany, Italy, you’ve enjoyed the benefits of free movement, you’ve enjoyed the benefits of Ryan Air and Easy Jet, and all of this has come about as a result of EU Law. And yet, free movement of workers has become an absolutely toxic issue in this country, and the question is, why? Well, the Treaty of Rome, the foundation of the European Union, made clear that there would be rights of free movement for workers, for the self-employed and also for service providers and recipients and when you went on holiday, you would have gone either as a service recipient under the treaty or possibly under the more recent provisions on free movement of citizens.
However, the real crutch has come over the free movement of workers and this is because in 2004 ten new member states joined the European Union, eight of them were former Eastern European states where the level of wages was significantly lower than those in the Western European states. Now, when they acceded to the European Union, there were treaties and those treaties had transitional provisions in them for states who wanted to take advantage of them, and most states, most notably Germany, Austria, did take advantage of those transitional provisions and they had seven years before the rights of free movement of workers took effect. The UK decided not to take advantage of those transitional measures and so the combination of the fact that there were no transitional arrangements, there was a worker registration scheme but that was fairly light touch, and the fact that English has become a universal language meant that very large numbers of migrant workers came from those EU eight states to come to look for work in the United Kingdom, as they were entitled to under European Union Law.
Now, the then government, which was a Labour government, thought that numbers coming would be small and they were proved to be totally wrong; about a million people turned up, many, many more people than were expected. Now, if you remember at the time, the economy was booming and therefore many of them could be integrated into the labour market and they took up jobs in all sorts of things, but they were doing very important work in the UK in sectors where British employers were finding it hard to get people; most notably: meat processing, other types of food processing, the care sector, other types of agricultural work. So these people came and they were integrated but of course, once the crisis hit and unemployment rose then inevitably the focus became on migrants and the perception that migrants are taking our jobs.
Now, I don’t want to engage in the rights and wrongs of that particular claim. There is a lot of economic analysis that shows that actually there is really very little correlation between migrants doing work and unemployment levels in certain parts of the UK. I want to focus on the legal issues, because the Conservatives are desperately trying to somehow limit the number of workers coming from other EU states to the UK. As a case in point, you have, this is the front page of the Sunday Times from last week, so the 19th of October, and as you can see, it says, “PM threatens quotas for EU workers”, and this is just one of a number of kite flying measures that the government has put out to try to work out what it can do. This is the legal issue: the legal issue is that Article 45 of the Treaty on the functioning of the European Union makes clear that there is a right of free movement of workers and, once they are here, these workers must not be discriminated against on the grounds of their nationality. There are exceptions to those rules but those exceptions are extremely limited and, most importantly, the exceptions can’t be invoked on the grounds of economic migration. We want to use the so-called public policy exception to keep foreign workers out because they are upsetting the balance on our labour market. I should say that these roles on free movement have been invoked by David Cameron himself when the Spanish were trying to interfere with free movement in coming into and out of Gibraltar and David Cameron went straight to the commission and said it’s not fair, the Spanish are interfering with the rights of free movement of workers under Article 45.
Nevertheless, he’s now in a position to say I want to restrict free movement of workers, particularly workers coming from Eastern European States. Well, the bottom line is he can do nothing whatsoever under the current treaty arrangements, and so the question is, what can he negotiate going forward if that’s the objective he wants to achieve? The first possibility is to seek a treaty amendment, very difficult to do because, as we’ve discovered before, it requires the agreement of all of the member states, plus the Council, plus the European Parliament and in those states which require a referendum, there will need to be a referendum as well. So there’s not much enthusiasm for having treaty amendments but were we to overcome those hurdles, he could seek a treaty amendment which had, for example, an emergency break, so dealing with the problem that if there is mass immigration which is jeopardising the stability of the labour market, he can pull the brake and curtail that migration for a period of time: one possibility. Another possibility is to introduce a points-based system saying we will only admit into the UK people with certain high, usually high skills level according to a points-based system, a system that’s applied in other non-EU states. It seems to me these are both extremely unpalatable options, emergency break perhaps less so because it would be in the case of an emergency and it’s very unlikely that we will ever have such a large influx of migrants as we did in 2004.
Points-based system, you’ve got to remember that there is a quid pro quo that if the UK manages to get that in the treaty then it will apply equally to British people going to work, going to live in other member states, and you need to remember that there are about as many British people living in other member states as there are migrants living in the UK. So what’s sauce for the goose is sauce for the gander and it could be used against the UK and against the UK’s interests. Furthermore, as I’ve said to you, it’s really quite important that migrants come in because they’re doing a lot of jobs for which there is no appetite, for a combination of reasons, for people to do who are national workers.
So amending the treaty is one possibility. The second possibility is to amend the directives, so there is a very important directive called the Citizen’s Rights Directive, directives are the second tier in terms of the EU hierarchy. It would be easier to amend a directive and that amendment might possibly include some sort of emergency break, easier to deliver but again same problem, what can be done by the UK against migrant workers can equally be done against British workers working in other member states. Furthermore, radical reform of the directive is not possible if in any way the reform of the directive in any way interferes with free movement of workers as laid down by the hierarchically superior norm in Article 45.
The UK has already in the context of the directives extended the period of residence before individuals can claim social welfare benefits and that, providing it’s non-discriminatory, is legitimate. The third thing that the UK could do is to apply transitional arrangements, as Germany and Austria did in 2004, to any new member state that joins the EU, and that’s exactly what we did with Bulgaria, with Romania, and we are now doing it for Croatia as well. That of course doesn’t address the problem, as the government perceives it, of having very large numbers of migrants currently working in the UK. The suggestion in the Sunday Times, which has been floated by the government, is that we should issue a limited number of national insurance numbers to low skilled European migrants, as the senior Conservative is reported as saying. But again, this may risk harming our economy because we need low skilled migrants as well as high skilled migrants to work in those sectors, like meat processing, other food sectors, agriculture and also the care sector.
So, actually, what’s on the table for the Conservatives is not terribly appealing to a conservative audience that wants to interfere with or limit free movement of workers. The final point I want to make to you is that migrants, the evidence does show, are a net benefit to the UK economy. The figures are contested, it’s not always clear but most of the reports that have reported on what’s been done in this field suggest that migrants contribute about 34 percent more to the fiscal system than they take out. If you think about it, that’s not very surprising, most of the migrants who are here are young, fit, healthy, they want to work, they thus contribute through paying tax and national insurance and because they are young, mercifully they are not a big drain on the health care system, nor on the pension system. So, this is a delicate, it’s a complex area and there’s no one single quick easy fix, which the government will be able to deliver.
However, the real crutch has come over the free movement of workers and this is because in 2004 ten new member states joined the European Union, eight of them were former Eastern European states where the level of wages was significantly lower than those in the Western European states. Now, when they acceded to the European Union, there were treaties and those treaties had transitional provisions in them for states who wanted to take advantage of them, and most states, most notably Germany, Austria, did take advantage of those transitional provisions and they had seven years before the rights of free movement of workers took effect. The UK decided not to take advantage of those transitional measures and so the combination of the fact that there were no transitional arrangements, there was a worker registration scheme but that was fairly light touch, and the fact that English has become a universal language meant that very large numbers of migrant workers came from those EU eight states to come to look for work in the United Kingdom, as they were entitled to under European Union Law.
Now, the then government, which was a Labour government, thought that numbers coming would be small and they were proved to be totally wrong; about a million people turned up, many, many more people than were expected. Now, if you remember at the time, the economy was booming and therefore many of them could be integrated into the labour market and they took up jobs in all sorts of things, but they were doing very important work in the UK in sectors where British employers were finding it hard to get people; most notably: meat processing, other types of food processing, the care sector, other types of agricultural work. So these people came and they were integrated but of course, once the crisis hit and unemployment rose then inevitably the focus became on migrants and the perception that migrants are taking our jobs.
Now, I don’t want to engage in the rights and wrongs of that particular claim. There is a lot of economic analysis that shows that actually there is really very little correlation between migrants doing work and unemployment levels in certain parts of the UK. I want to focus on the legal issues, because the Conservatives are desperately trying to somehow limit the number of workers coming from other EU states to the UK. As a case in point, you have, this is the front page of the Sunday Times from last week, so the 19th of October, and as you can see, it says, “PM threatens quotas for EU workers”, and this is just one of a number of kite flying measures that the government has put out to try to work out what it can do. This is the legal issue: the legal issue is that Article 45 of the Treaty on the functioning of the European Union makes clear that there is a right of free movement of workers and, once they are here, these workers must not be discriminated against on the grounds of their nationality. There are exceptions to those rules but those exceptions are extremely limited and, most importantly, the exceptions can’t be invoked on the grounds of economic migration. We want to use the so-called public policy exception to keep foreign workers out because they are upsetting the balance on our labour market. I should say that these roles on free movement have been invoked by David Cameron himself when the Spanish were trying to interfere with free movement in coming into and out of Gibraltar and David Cameron went straight to the commission and said it’s not fair, the Spanish are interfering with the rights of free movement of workers under Article 45.
Nevertheless, he’s now in a position to say I want to restrict free movement of workers, particularly workers coming from Eastern European States. Well, the bottom line is he can do nothing whatsoever under the current treaty arrangements, and so the question is, what can he negotiate going forward if that’s the objective he wants to achieve? The first possibility is to seek a treaty amendment, very difficult to do because, as we’ve discovered before, it requires the agreement of all of the member states, plus the Council, plus the European Parliament and in those states which require a referendum, there will need to be a referendum as well. So there’s not much enthusiasm for having treaty amendments but were we to overcome those hurdles, he could seek a treaty amendment which had, for example, an emergency break, so dealing with the problem that if there is mass immigration which is jeopardising the stability of the labour market, he can pull the brake and curtail that migration for a period of time: one possibility. Another possibility is to introduce a points-based system saying we will only admit into the UK people with certain high, usually high skills level according to a points-based system, a system that’s applied in other non-EU states. It seems to me these are both extremely unpalatable options, emergency break perhaps less so because it would be in the case of an emergency and it’s very unlikely that we will ever have such a large influx of migrants as we did in 2004.
Points-based system, you’ve got to remember that there is a quid pro quo that if the UK manages to get that in the treaty then it will apply equally to British people going to work, going to live in other member states, and you need to remember that there are about as many British people living in other member states as there are migrants living in the UK. So what’s sauce for the goose is sauce for the gander and it could be used against the UK and against the UK’s interests. Furthermore, as I’ve said to you, it’s really quite important that migrants come in because they’re doing a lot of jobs for which there is no appetite, for a combination of reasons, for people to do who are national workers.
So amending the treaty is one possibility. The second possibility is to amend the directives, so there is a very important directive called the Citizen’s Rights Directive, directives are the second tier in terms of the EU hierarchy. It would be easier to amend a directive and that amendment might possibly include some sort of emergency break, easier to deliver but again same problem, what can be done by the UK against migrant workers can equally be done against British workers working in other member states. Furthermore, radical reform of the directive is not possible if in any way the reform of the directive in any way interferes with free movement of workers as laid down by the hierarchically superior norm in Article 45.
The UK has already in the context of the directives extended the period of residence before individuals can claim social welfare benefits and that, providing it’s non-discriminatory, is legitimate. The third thing that the UK could do is to apply transitional arrangements, as Germany and Austria did in 2004, to any new member state that joins the EU, and that’s exactly what we did with Bulgaria, with Romania, and we are now doing it for Croatia as well. That of course doesn’t address the problem, as the government perceives it, of having very large numbers of migrants currently working in the UK. The suggestion in the Sunday Times, which has been floated by the government, is that we should issue a limited number of national insurance numbers to low skilled European migrants, as the senior Conservative is reported as saying. But again, this may risk harming our economy because we need low skilled migrants as well as high skilled migrants to work in those sectors, like meat processing, other food sectors, agriculture and also the care sector.
So, actually, what’s on the table for the Conservatives is not terribly appealing to a conservative audience that wants to interfere with or limit free movement of workers. The final point I want to make to you is that migrants, the evidence does show, are a net benefit to the UK economy. The figures are contested, it’s not always clear but most of the reports that have reported on what’s been done in this field suggest that migrants contribute about 34 percent more to the fiscal system than they take out. If you think about it, that’s not very surprising, most of the migrants who are here are young, fit, healthy, they want to work, they thus contribute through paying tax and national insurance and because they are young, mercifully they are not a big drain on the health care system, nor on the pension system. So, this is a delicate, it’s a complex area and there’s no one single quick easy fix, which the government will be able to deliver.