Ronald Conway: What have the Romans (and other European partners) ever done for us?
Scottish solicitor advocate Ronald Conway responds from the perspective of a lawyer in the UK to Michael Upton’s recent reflections on Brexit.
So John Cleese famously asked in The Life of Brian.
If you were to ask the proponents of Brexit the same question about EU legislation and the European Court of Justice, you will get a dusty answer. From diktats on the shape of bananas, to the banning of UK number plates, to the enforced ice packaging of kippers, Brexiteers seek to portray an endless stream of mean spirited , busybody legislation.
In recent times those mythologies have been matched by the Corbynite left. Persons who should know better also seem anxious to downplay the benefits of EU legislation on the domestic polity. Any gains were made by the trades union and labour movement and would have occurred in any event.
EC Directives are binding on all member states, although it is left to the national state to transpose the Directive into its own legislation. The final arbiter on the meaning of the legislation is the European Court of Justice. So there is a certainly a diminution of UK sovereignty, at least in the sense that we have agreed to be bound by the ECJ interpretation of EU legislation. In common with every other country in the EU, including big hitters like Germany and France, (hardly vassal states) , sovereignty is shared.
And whilst it’s impossible not to be impressed by the level of erudition in Michael Upton’s recent “Valediction” post, how realistic is his vision of a malign corpus of law (which would be improved if only we had followed our Roman law traditions!)
May I offer a rather more mundane and grounded perspective. What difference has the European Union and its laws made to the lives of ordinary citizens of the United Kingdom?
The following is a whistle stop tour of some of the main ticket items of European legislation and jurisprudence.
Workers Rights and Health and Safety Directives
These directives make provision for equal pay, equal treatment and equal opportunities for men and women; prohibition of racially based discrimination and harassment; maximum working hours; preservation of worker rights on company takeovers by way of transfer of undertaking regulations; the establishment of maternity and paternity rights and the prohibition of exploitation of agency and temporary workers.
Whilst it is true that some of these rights were prefaced by UK legislation, it is Europe which has consistently extended the scope and closed the loopholes. It is no exaggeration to say that these are reforms which have transformed the workplace and social landscape for all of us.
In the area of health and safety, Council Directive EC/89/391 was transposed into UK law as the Management of Health of Safety at Work Regulations 1992, at a time when John Major was in power. The motivation for the Directive is stated specifically to be the reduction of the unacceptably high number of accidents throughout Europe, and the prevention of any member state gaining an economic and competitive advantage in the single market by a race to the bottom.
These and other industry specific regulations introduced the requirement for each undertaking to examine its activities, carry out a risk assessment and put in place preventive measures against risk.
As accident prevention measures go, these European measures have been spectacularly successful and have saved lives. In 1989 there were over 425 fatal accidents to employees in the UK. Over the last three years the annual death toll had been reduced to an average of 141, and is part of a continuing downward trend for all kinds of workplace accident. Europe is one of the safest places in the world to work, and the UK workplace ranks amongst the safest in Europe. In the words of Bill Clinton, “This is not opinion, it’s arithmetic.”
The Consumer Rights Directives
The Consumer Protection Act 1987 gave effect to EC Directive 1985/374/ECC, and was the first such Directive to be transposed into UK law. For the first time ever, it imposed a strict product liability regime whereby manufacturers of products were liable to all persons injured by them. The thalidomide tragedy, the world’s greatest ever medical disaster affecting over 20,000 persons, was a formative influence. To this day the German manufacturers Grunethal have failed to accept full legal responsibility, claiming that in the light of 1950s’ research the catastrophe was not foreseeable, and closing the door on any realistic damages claims. As a result thousands of thalidomiders have had to rely on ex gratia payments and are to this day undercompensated.
Since the Directive there is no longer any requirement to prove foreseeability or negligence , frequently an impossible task for claimants.
All that is required to establish liability is that the level of safety of the product is below the public’s legitimate expectation. The consumer is at the heart of the test. It has been applied in UK case law to products as diverse as HIV infected blood and child safety seats.
Other consumer directives have sought to harmonise consumer purchase rights for goods and services across the EU, recently addressing the sale of digital content, harmonising data protection rights, and preventing for the first time excess charges for the use of debit and credit cards, or the imposition of premium rate hotlines.
The Motor Insurance Directives.
The first EC Directive on Motor Insurance was in 1972 and the Sixth Directive has been passed recently. The UK transposed the directives of the time into the Road Traffic Act 1988. The purpose of these directives is to harmonise motor insurance law throughout the European Union. The overriding principle is that no innocent person involved in road traffic accident in a member state should go uncompensated and to that end each state must have a database of insurers. There must also be a safety net for all persons who are unfortunate enough to be involved with an uninsured driver. In the UK the Motor Insurers Bureau is the insurer of last resort charged with complying with the directives. The recent UK Uninsured Drivers Agreement 2015 is the latest embodiment of the provisions. Whilst again it is true that the Motor Insurers Bureau existed before Europe, it is only with the European based legislation that a comprehensive database scheme has been enacted, with the Motor Insurer’s Bureau having a history of taking technical defences and consistently refusing to close loopholes until forced to do so by European case law.
The Package Tour and Package Holidays Directives
Council Directive EC/90/314 (Package Holidays etc.) was transposed into UK law by the Package Travel, Package Holiday and Package Tour Regulations 1992. The driver is that consumers have the right to the holiday that they paid for. So if your hotel is a mile from the beach, if your holiday is ruined by building work or where otherwise you are a victim of a misleading brochure, or are injured by negligent hotel staff, you are protected under this Directive. The critical point is that your legal remedy is not simply against the foreign hotel but against the tour operator with whom you booked, situated in the UK and subject to the UK courts. . A further EC Package Travel Directive 2015 was issued, and this was transposed into UK law by the Package Tours Regulations 2018. This was in reaction to the proliferation of online travel booking where agencies claimed to offer a so called “dynamic package”. As persons went online from component to component choosing flights, travel and hotel separately, the travel industry stated these transactions were not covered by the Package Tour Regulations 1992, leaving no effective remedy. This loophole has now been closed by the 2018 Regulations.
The Denied Boarding Regulations 261/2004
In a similar vein the EU has struck at airline delay and the historic refusal of airlines to compensate passengers. The Denied Boarding Regulations provide that where there are flight delays and cancellations, you are entitled to both assistance and compensation. The rules apply to all flights from EU airports irrespective of the airline, and to all flights to EU airports operated by airlines based in the EU.
End of Roaming Charges ; the Act of European Parliament 1st February 2017
In what must be one of the supreme acts of advertising chutzpah of recent years Vodafone ran a 2018 commercial with white suited wedding guest Martin Freeman proclaiming the virtues of Vodafone free data roaming, as if this was an idea of their own invention. The truth is that at any time in the past Vodafone et al could have slashed roaming charges, but chose instead to milk a profit opportunity, landing hapless customers a homecoming to bills of hundreds of pounds.
The reason we no longer have the worry of a large mobile phone bill during our holiday in an EU country, is that European Commission has forced mobile providers to slash data roaming charges throughout the EU. .
It is instructive to see who is against this kind of legislation. As early as 1986 businesses lobbied to water down the terms of the Consumer Protection Act to make it fault based and not subject to strict liability. UK road traffic insurers consistently delayed to implement the Motor Insurance Directives in their entirety . The online travel industry , refused to accept that they were subject to the Package Tour Regulations 1992 as they offered a “dynamic” not a “tour” package.
Michael O’Leary the notoriously abrasive CEO of Ryanair stated,
“We don’t want to hear your sob stories. What part of no refund don’t you understand?”
That was before passengers like Denise McDonagh took Ryanair and other airlines to the European Court of Justice. Their victories are the reason that you see airport delay and cancellation guidance in every airport in Europe.
And it is difficult to detect any enthusiasm from the ERG for the health and safety legislation.
Instead we hear jibes about Elf n’Safety, the Nanny State, and the overreaching EU bureaucracy. The present UK governing party, (with the help of their then Lib Dem Coalition partners) has already tried its best to undermine employment rights by imposing swingeing charges on persons pursuing employment tribunal claims. This resulted in an 80% decrease in such claims, before the Government was told by the Supreme Court to scrap the charges as an affront to the justice system.
In “The Life of Brian”, having posed the question, John Cleese is floored by a litany of the benefits of imperial civilisation.
There is a common thread in EU lawmaking. This is legislation and jurisprudence which is consistently weighted in favour of workers and consumers, from a law making body with the appetite, the inclination, and the fire power to face down vested and corporate interests.
Prime Minister Theresa May promised that her “Great Repeal Act” would not dilute consumer or worker rights. The current Prime Minister has made reassuring but non -binding noises. What are those worth now with a following wind and a majority of 80 at his back?
And what he cannot promise is that the UK on its own has anything like the EU muscle needed to face down multinationals and global corporations and to guarantee effective protections.
That (amongst others) is the case for European law, as it affects our daily lives.
Why was it never properly made?
Ronald E Conway, solicitor advocate, Conway Accident Law Practice.