The Rule of Law and Access to the Courts for EU Migrants

Catherine Barnard and Sarah Fraser Butlin

Journal of Common Market Studies, 2020, vol. 58, issue 6, 1621-1634

Abstract: The ability of workers generally to enforce their labour rights in the UK has been a matter of ongoing discussion over a number of years. However, the dominance of the topic of immigration in the Brexit debates, along with questions surrounding the need for, and position of, EU migrant workers in the British labour market, has brought into sharp focus the issues facing the most vulnerable workers in their ability to enforce their employment rights. This, we argue, poses a serious challenge to the rule of law as defined by Bingham. For him, one of the principles of the rule of law is that access to courts is the ‘obvious corollary of the principle that everyone is bound by and entitled to the benefit of the law’. This leads to our consideration of, first, the perspective of formal enforcement (a ‘thin’ conception of the right of access to the courts) and second, effective substantive enforcement (a ‘thicker’ conception of the right). We argue that some of the reforms proposed in the Taylor review will be a thickened right of access for all workers, but a relatively thinner right for EU migrant workers, in which their particular vulnerabilities and obstacles are not recognized or ameliorated. The chasm between EU migrant and non‐migrant workers in the application of the rule of law would at the very least, remain, if not widen further.

Date: 2020
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