No 'certainty' for EU workers in Brexit plan

The claimed ‘certainty’ in the UK government’s ‘cut and paste’ job on EU law clearly doesn’t apply to EU nationals working in Scotland and the rest of the UK. 

Last month the UK government published the European Union (Withdrawal) Bill. It was going to be called the Great Repeal Bill, until people started calling it Gerbill for short. Insufficient gravitas I suspect! 

The Bill will repeal the European Communities Act 1972, which means EU law will no longer apply in the UK and European Court of Justice (ECJ) judgments won’t be binding on UK courts. However, it also aims to ‘cut and paste’ EU sourced laws by incorporating them in UK law once we exit the EU. We are told this will provide certainty, with the exact same rights as the day before we finally leave.

It is questionable if it does that on workers’ rights generally, particularly in areas like health and safety. However, for the many thousands of workers who are EU nationals, the UK government’s approach is very different.

These are set out in a separate UK government proposal as part of the Article 50 negotiations. These proposals would take away rights citizens currently have, create new red tape and uncertainty for millions of people. So much for the promises made by the Leave campaign that EU citizens would be treated no less favourably after Brexit. Bit like the missing £350m for the NHS!

In contrast, the EU Commission has set out a more sensible plan, which includes: 

• the right to acquire permanent residence after living in a country continuously for five years, no matter how many years prior to the withdrawal date the person had been living in that country. 
• the right of “current and future family members” to join the person that has exercised their right to free movement, at any point after the date of withdrawal. 
• the protection of recognised professional qualifications which were either obtained or recognised in any member state prior to withdrawal. 

The UK also wants a retrospective cut-off date of March 2017 for its new ‘settled status’. It is hard to see how a cut-off date other than the date of withdrawal from the EU could work and it would impact on the ability to achieve ‘settled status’ under the UK proposals. A retrospective cut-off date will also discourage health care workers from coming to Scotland now, something that is already obvious from the nurse registration data.  

There needs to be a disputes mechanism and the EU is proposing the ECJ while the UK wants it to be limited to domestic courts. I don’t think either of these would work, but it should be possible to reach a compromise position on a suitable disputes mechanism.

Getting a quick agreement on this matters not only for the workers concerned, but for the many industries in Scotland that rely on EU nationals. Universities have recently expressed their concerns over the UK plan for staff and students. A study by Deloitte’s indicated that half of skilled EU workers were considering leaving after Brexit. Nurse registrations from the EU have already almost dried up, adding to the acute staffing shortages in the health and care sector.

Nowhere in the UK is the economic and social case for immigration stronger than in Scotland. Welcome recent increases in population are almost entirely driven by migration (see chart below). 

Our working age population is not projected to increase at the same rate as the rest of the UK. The biggest increase in demand for new jobs is in health and care with 65,000 extra jobs needed by 2020. The numbers of working age Scots to support our ageing population is not going to be available without immigration. 

Public opinion polls in Scotland and the UK shows strong support for letting EU migrants stay and that includes three quarters of leave voters. By wanting to change the current status of EU nationals, the UK government position is inconsistent with its stated approach to other EU law in the Repeal Bill. 

The key principle should be the protection of existing rights for EU nationals in the UK and reciprocal rights for UK citizens living in the EU. That’s the right approach for workers and the essential services they deliver.

EU nationals and the services they deliver

As the UK government triggers our exit from the European Union, a key initial focus for UNISON is the impact on members who are EU nationals and the public services that rely on them.

One of the many difficulties in dealing with this issue is the paucity of accurate data on the number of EU nationals working in Scotland. The data that exists doesn’t capture all of those working in Scotland or are based on statistically small samples for estimates.  As an NIESR report last year highlighted, the numbers are likely to be significantly larger than the official statistics.

The Scottish Government has just published a paper based on the Annual Population Survey. It found that in 2015 there were around 181,000 non-UK EU nationals living in Scotland representing 3.4% of the total population. This is lower than for the UK as a whole, where non- UK EU nationals represent 4.9% of the total UK population. 30% of these are under 16. 47% of all EU nationals in Scotland are Polish nationals.

Just over half live in three city areas: Edinburgh (21.8%), Glasgow (17.6%) and Aberdeen (12.7%). This compares to just a quarter of the total population of Scotland living in these cities.

This means 115,000 EU nationals are in employment (75.9%). 28.6% of these work in ‘distribution, hotels and restaurants’ followed by 19,600 (17.1%) in ‘public admin, education and health’ - services within UNISON’s sphere of influence.

Over one-third have degree level qualifications or higher. However, they are significantly less likely to be working in high or medium skilled jobs (56%), commensurate with their qualifications, than the Scottish workforce as a whole (79%). The median gross hourly earnings for EU national working full-time in Scotland in 2015 was £9.00 compared to £12.20 for full-time UK nationals. EU nationals have had consistently lower hourly earnings than UK nationals, on average around £3.15 less than UK nationals since 2007.

The next stage is to ensure that our members and the services they deliver are protected. 

The Cavendish Coalition brings together 34 health and social care organisations working across the UK (including UNISON) to make certain that the health and social care system is able to retain and continue attracting the staff it needs – domestically, from Europe and globally, following the UK’s withdrawal from the European Union. They have written to the UK government and the First Minister of Scotland, setting out three priorities:

1. Permanent leave to remain for EEA nationals in the health and social care sector: To provide certainty for individuals and employers providing services to our people and communities, we are calling on the Government to quickly confirm the right to permanent residence of all people from the EEA working in social care and health care across the UK. We have also highlighted the need for a streamlined and inexpensive process for claiming leave to remain which does not create additional administrative burden on employers.
2. Sufficient transitional arrangements for EEA nationals leave to remain. In order to ensure a stable pipeline of staff, we are urging any ‘cut-off’ date at which EEA nationals resident in the UK would be eligible to apply for permanent leave to remain to be late as practicable. For the stability of workforce supply, there should also be sufficient advance notice of any ‘cut off’ date to enable health and social care employers and candidates to make preparations and informed choices. 
3. An immigration system which supports health and social care provision: Efforts to increase domestic workforce supply are vitally important and the Cavendish Coalition is committed to increasing local opportunities for UK citizens to train and work in the health and social care sectors. Increasing domestic supply will, however, take time. Both during the negotiating period and in the years after the UK leaves the EU, providing high quality and sustainable health and social care services will depend on workers from within and outside the EEA.

UNISON Scotland has made similar points in submissions to the Scottish Government and to parliamentary inquiries. Scotland’s care system needs EU and non-EU nationals to deliver a growing demand for health and care services.

Impact of Brexit of Scotland's health and care sector

At this morning’s Holyrood Brexit and Health seminar, I was asked what my immediate response to the Brexit vote was. Well of course I was elated at the thought of the promised £350m extra spending on the NHS. I had quickly calculated the Barnett consequentials and drafted UNISON’s shopping list to the health minister. Then I woke up and realised that this pig had not flown by my window!

In the real world, health is like so many other sectors, avidly awaiting any semblance of a strategy from the UK government. It remains unclear if this is because of civil service unpreparedness or cabinet divisions. However, it shouldn’t stop us in Scotland, identifying the risks and the opportunities and preparing our own position.

An early priority should be the economy. There are some positive signs of recovery except for the currency, and crucially for health, the public finances. We should be concerned that the Autumn Statement does not use Brexit as an excuse for a new round of austerity in order to achieve the ideological goal of reducing the state. In the alternative, if the Chancellor accepts the need to boost the economy, we should be increasing revenue spending as well as capital. NHS Scotland needs revenue funding more than it needs capital.

The big issue that focused most minds at today’s seminar is migration.  A right to stay for EU nationals is crucial to health sector. It may be legally possible to deport people, but there would be huge political and practical difficulties. I suspect the UK government’s unwillingness to make a declaration on this, is more to avoid a pre-Brexit migration surge than as a realistic bargaining chip.

There are various estimates of how many EU nationals work in the health and care sector in Scotland, but none are reliable. Audit Scotland’s report today on the social care sector used a 2008 survey that showed 6.1% of the social care workforce in Scottish care homes for older people were EU – non-UK workers, and a further 7.3% were employed under work permits. Most of those employed from within the EU came from Poland and the Czech Republic and those from outside the EU were from the Philippines, India and China. The NHS staff survey on ethnicity is published annually, but is voluntary and equally unreliable.

What we do know is that staffing levels are already under pressure. NHS Scotland had 2207 nurse vacancies in March of this year and the social care sector is struggling to recruit and retain staff.  If we are struggling with EU nationals, we need to ask how we will recruit the additional 65,000 additional health and care staff the sector will need in Scotland by 2022.

Recruiting more care staff from the indigenous workforce is going to be challenging given the numbers involved. We will need to really value care workers for the great job they do. That means fair pay, training, and time to care. We also need to break down gender segregation in the sector. Unless significant numbers of male staff are attracted to the sector, something like one-third of all female school leavers will need to work in care – and that simply isn’t going to happen.

While these are the immediate concerns, we should start to plan for other issues that will impact on the health sector. These include the common EU standards in professional regulation and employment law, particularly the working time directive. There may also be some opportunities in Brexit to address the limitations European procurement law has had on the sector, in particular, state aid and the posted workers directive.

There are wider public health impacts of EU environment and food regulation. Not to mention the loss of research funding and opportunities for collaboration over research. We should also be concerned about a UK approach to trade deals given the lack of expertise and ideological approaches. If we think the EU has made a mess of TTIP, CETA etc. – imagine what ministers like Liam Fox will do! Private healthcare predators could have a field day in a post-Brexit environment.

In conclusion, Brexit creates a wide range of potential issues for the health and care sector. The threats are obvious, although we shouldn’t lose sight of opportunities. Most people at today’s seminar recognised that we should move on from despair at the outcome and focus on what we need to do to protect these crucial services.

Brexit priorities should be the economy and public services

Oh to be a fly on the wall at yesterday's UK cabinet away day on post- Brexit planning. Given that most of the ministers around the table were in favour of Brexit - they will no doubt be outlining how they will spend the extra £350m a week they promised!

In practice they will be considering more prosaic options than the Brexit fantasies. As the Guardian reports, some officials at the Foreign Office are pushing for “as much Europe as possible” while others in the Home Office are reluctant to consider full EEA membership or single market access because their priority is an immigration clampdown.

And there lies the kernel of the problem. The most advantageous trade deal requires the UK to sign up to most of the EU rules, including the free movement of labour. The very thing the Brexiteers around the cabinet table used to stir up the Brexit vote.

Then there is Scotland's lone man around the cabinet table - David Mundell. He will report that the natives are restless, having voted decisively to remain in the EU, and considering options that don't even appear in the hastily cobbled together Whitehall scenario planning.

I can offer him some assistance with the UNISON Scotland submission to the Scottish Parliament European Committee inquiry on this subject. In that submission we suggest that Governments should take immediate actions to support the economy and address the concerns of EU citizens living in Scotland. After that, we believe that the Scottish Government should use all its powers to protect public services and human rights, including employment rights. This also means considering all the constitutional options to minimise the impact Brexit could have on Scotland.

You can see from this that our immediate concern is for UNISON members who are EU nationals. The obvious first question for me was how many public service workers in Scotland are EU nationals. I trawled around the usual statistical sources and discovered that no one appears to collect this data. For example, in NHS Scotland there is a voluntary staff survey, which given the number of staff who declined to answer, is unreliable.

Jonathan Portes at NIESR has been doing some research into this and has published some very interesting initial findings this week. He has discovered that HMRC’s estimate that in 2013-14 there were 2,540,000 individuals who “had a tax record” in the UK and were EEA nationals. In contrast, the Labour Force Survey (LFS) in 2013-14 reported the number of EU nationals in employment fluctuated between 1.45 and 1.62 million. The Annual Population Survey reported 2.15 million, although this includes non-economically active persons. While Jonathan suggests some possible reasons for the difference, it still adds up to a significant discrepancy. More importantly it suggests that we may be more reliant on EU nationals than we think.

In our submission, I set out in some detail the reasons why migration is so important to Scotland's economy and public services and therefore why Theresa May’s priorities are wrong for Scotland. Public opinion polls in Scotland and the UK show strong support for letting EU migrants stay. We do not believe that our colleagues from EU countries should be used as some form of bargaining counter in Brexit negotiations.

The Scottish Government should also be calculating the costs to public services and the wider economy of the different post-Brexit immigration options, being considered at Chequers. For example, if the UK government decides that free movement is too great a political price to pay for EEA membership, then there would be significant additional employment costs. The current rules for non-EEA nationals include sponsorship and immigration skills charges. If the supply of labour was restricted there will also be workforce planning issues, particularly in health and care, and associated training costs. Scotland will need around 65,000 extra health and care workers by 2020.

We don't ignore the various constitutional options and set those out in our submission. However, an early priority should be the very human consequences for EU nationals living in Scotland and Scots living in EU states. This matters for them personally, but it also matters for the Scottish economy and the public services they help deliver.