Automated recognition software: your rights in the public space

This is the text of my summer 2021 column for BECTU’s Stage, Screen & Radio, slightly extended and with added links. Sometimes the column – especially when published several months later – gets overtaken by events; occasionally concurrent events give it added relevancy and that’s the case with this one, with news this week that the Information Commissioner is stepping in over the case of facial recognition technology in Ayrshire schools ‘to speed up the lunch queue’; and with Eurostar testing the same to give ‘seamless travel across borders’ and a ‘touch-free journey through border checks’ (under plans originally announced last summer). As always, the language is of course interesting focusing on the upsides with little consideration of the (considerable) downsides. Passport checks – which already incorporate biotechnology – are one thing; whether school children are in a place to give informed consent for something as quotidian as school lunches is another thing entirely.

Anyway, on with the column…

The European Data Protection Supervisor – an agency which reinforces data protection and privacy standards – has called for a ban on the use of ‘automated biometric identification in public space’. This means a number of things connected with the use of what, for simplicity, we’ll call here ABI to categorise a range of features including, most obviously, facial recognition but also gait, voice, keystrokes and our other biometric or behavioural signals.

The EDPS is not concerned with the use of AI to unlock your smartphone, but it is concerned about the public space: law enforcement and also the wider commercial and administrative environments in which it might be deployed – for example ‘smart’ advertising hoardings and billboards, attendance at sporting and other mass events, in airport screening or wherever users access public services.

The call for a ban is clearly serious – but so is the context in which it was made: the European Commission’s legislative proposal for an Artificial Intelligence Act. This, the EDPS noted, did not address its earlier calls for a moratorium on the use of ABI in public, however otherwise welcome the initiative.

The UK has of course left the EU, but the Information Commissioner’s Office – the UK’s own data protection and information authority – is also concerned about these issues. A reference to facial recognition technology appeared very early in the ICO’s 2019/20 Annual Report; while the Office issued an Opinion on the use of facial recognition technology in law enforcement in October 2019. It also intervened in a judicial review on the use of such technology by South Wales Police – a review which the police lost on human rights and data protection grounds.

We know – and have done for some time – of the problems of ABI in distinguishing between people: it has a much lower accuracy record in correctly matching people of colour, women and those aged 18-30. Partly, this speaks to the lack of diversity amongst those developing ABI software and amongst those on whom it is tested; in either case, were the base to be more representative, its accuracy record may well be better.

This, in turn, speaks to the need for software development standards also to be more representative and more inclusive, and to take serious account of tightly-drawn standards of ethics.

(Whatever the comical faults of the LinkedIn jobs algorithm, it is AI that is responsible for diverting job advertisements in a way which reproduces the extent of existing occupational job segregation, and which may contravene sex discrimination laws, by sending grocery delivery jobs to women and pizza delivery jobs to young men).

Furthermore the EDPS spoke specifically of its concerns that AI ‘presents extremely high risks of deep and non-democratic intrusion into individuals’ private lives’ while the ICO being similarly exercised – expressly, and in very similar language, about its potential for ‘unnecessary intrusion into individuals’ daily lives’ – indicates a worry among regulatory authorities that there are unsettling data privacy and state surveillance aspects surrounding the use of ABI in this way.

ABI works on the basis of matching scanned images against a ‘watchlist’, deleting those where there is no match and otherwise prompting human intervention. What the authorities are concerned about is whether an individual could anticipate, and understand, their image (or data) being processed in this way; and whether this is both a necessary and a proportionate response. What you and I might be concerned about is how someone could put us on a watchlist – was it because we went on strike, perhaps, or demonstrated against racism? – and how the authorities would then be allowed to track us wherever we go without us knowing.

Unquestioning faith

Additionally it’s true that we tend to place a large amount of unquestioning faith in the results that machines give us. If our trust is not to be abused, we need to be confident that the ABI which lies underneath has been developed, and is being used, in a socially just way.

The South Wales Police case highlights that ABI could identify large numbers of people and track their movements. Few trade unionists – or others organising protest actions – will need a refresher course on what that might mean. The decision in this case recognises the need for precise legal boundaries on the use of ABI, something which EDPS also openly acknowledges, although what these will be has yet to be defined.

Where we impose limits on the use of surveillance technology, in a law enforcement capacity and in terms of our knowledge of our data rights and our trust, is something in which we should all be taking a keen interest.

Working time: yet another study says…

There has been a lot of coverage on the BBC yesterday and today, both via the website and on the news bulletins, of the publication of the results of the shorter working hours trial in Iceland. Judging by the number of comments – upwards of 2,500 at the time of writing – there is a fair amount of UK interest in this (I did break a rule and peek below the line) and, while some comments are clearly misanthropic in tone, there is also a fair amount of genuine objective curiosity. The existence of the trial has been well-publicised and its results have been keenly awaited.

There is, of course, no reason why such an experiment should not work in the UK; and neither is there much to be lost by at least instituting a trial to see what lessons can be learned about the application of shorter hours in this country.

The Iceland trials (there were actually two) come on top of several others worldwide in recent times: a pilot project in Microsoft found that going to a four-day workweek (not necessarily associated with a reduction in working time) in 2019 in Japan boosted productivity by 40 per cent; Perpetual Guardian, a New Zealand trust management company, introduced in 2018 a successful trial of a four-day, 32-hour, working week, later made permanent for all staff, which saw sizable increases in productivity and in worker well-being; while TalkTalk found last year that ‘five days work could be done in four’ (actually a quote from the Chief Executive rather than a quantified research result) as a result of productivity gains reported by a clear majority of workers working from home during the pandemic (NB TalkTalk and Microsoft do have products to sell you as a way of working differently).

Some of the UK interest will have been sparked by the involvement in a joint analysis of the trial by a UK organisation, Autonomy, geared towards analysing the future of work not least in the area of working time. This might give it an specific interest in a successful outcome of the trial but Autonomy has, by the look of its funders, some interesting connections, including on this specific project and incorporating the past and present trade union movement, and therefore what it has to say is of interest. Autonomy’s partner in the analysis is the Icelandic organisation, ALDA (Association for Sustainability and Democracy), a think tank also engaged in analysis of the changing reality of work which openly advocates cuts in working hours. Shorter working hours with no loss of pay also of course featured in the 2019 Labour Party election manifesto, whose section on work included a whole sub-section on working time; and influenced quite heavily by the New Economics Foundation’s identification of the decoupling between leisure time and increases in productivity. Party policy here was driven by the Communication Workers Union, behind one of the major union campaigns to reduce working time in recent years (in the Royal Mail), and itself a backer of Autonomy.

What the trials (firstly in Reykjavík City Council between 2014 and 2019; and secondly in the Icelandic Government between 2017 and 2021 – together entailing nearly 3,000 workers out of a working population of around 200,000) concluded was that a drop in weekly working hours from 40 to 35 or 36 hours per week, with no loss of pay, resulted in productivity and service provision remaining the same or improving across the majority of trial workplaces (a substantial number were involved both in trials as well as in acting as control groups in which there had been no changes); while worker well-being dramatically increased including in terms of perceptions of stress and burn-out, and in health and work-life balance. Furthermore, the trials also remained revenue neutral for both the Reykjavík City Council and the government. While underway, the trials’ evident effects led either to collective agreements being signed between 2019 and 2021 for permanent reductions in working time or for the right to negotiate shorter hours covering a total of some 86 per cent of the country’s working population.

The trials were established following concerns that Iceland’s low productivity, long working hours, poor work-life balance and poor well-being – items which have no little connection with the UK – could be addressed by shorter working time on the basis of the correlation between shorter working hours and increased productivity both in wealthy nations and in individual workplaces. Indeed, the trials were set up to explore the veracity of these links within Iceland. This might be thought to give the trials something of a head-start since there is a degree of vested interest in their success: the trials were set up to prove on the ground something thought of as likely. However, this does not negate the full data gathering exercises, both qualitative and quantitative, that accompanied the trials – and we should also not forget that the trials were lengthy enough for workers to have established and embedded new routines by the end of them. We should also not forget that the trials did not just drop working hours – the intention to retain service provision levels required the trials to set about the reduction intelligently, by re-thinking some tasks and working practices while dropping others to re-organise work around the most efficient activities. As with Microsoft in Japan, this frequently entailed cuts in meetings.

Working hours of full-time workers in the UK are lower than in Iceland – 39 is the average (according to the 2019 Annual Survey on Hours and Earnings, picked deliberately to omit the effects of Covid-19 on the 2020 provisional ASHE data), and this has inched incrementally downwards from 40 in 1997. The equivalent in the UK of the Icelandic trials would thus be not to move to a four-day week, as much of the debate has recently envisaged, but to a lunchtime finish on Fridays. Thus, the Iceland trials were actually quite relatively conservative in their ambitions (and in this respect we should also note that the trials were, at the same time, also more radical in terms of the hours cuts than the agreements which have subsequently introduced shorter working time in Iceland which are, for the most part, considerably more modest).

More does indeed need to be done in this direction but, as a trial, the Iceland experiment successfully points to the direction of change; with lessons that are common to both the public and the private sectors. And there is plenty of arguments as to why shorter working time needs to happen, including the slowing down of the historic trend towards reductions in working time which would see workers in the UK on target for a 30-hour week by 2040 had pre-1980 trends continued; automation and the difficulties with implementing a robot tax; the failure of the share of national income going to workers to keep pace with productivity improvements across Europe (and the US and Japan) in recent decades; and the need to ‘build back better’, in the workplace as much as elsewhere, after the pandemic. It’s not as though workers are looking for something for nothing in this area as survey evidence, such as from Kronos Incorporated, has noted: there is real appetite among workers across the globe for a four-day week in which good employers will be ahead of the curve.

The main lessons from Iceland would seem to be these:

  • the requirement for revenue neutrality is not essential, but it was an important component in these particular trials. In some places – either on a country-wide basis or in individual workplaces – there might be a desire to invest in reducing working hours, recognising the disconnect between productivity and working time to which the NEF has pointed, and redressing the existing imbalance between productivity and the labour share
  • there is, otherwise, indeed a link between reducing working hours and productivity increases where the attempt is made strategically to re-design or re-organise work around the more productive activities
  • working time reductions need to be actively introduced if there is to be radical, rather than incremental, change in working time in the future
  • staff need to be actively engaged in the design of the programmes to achieve the aims of retaining service provision; and monitoring committees need to encompass trade unions not least from the perspective that organisational changes may have a damaging effect on some staff even where working time is less. Organisational change, even when implemented to achieve reductions in working time, is rarely a painless experience
  • a replacement of meetings with e-mails may well be a productivity solution which has a somewhat slimmer chance of working in the UK than it apparently did in Iceland – hence the importance of locally-negotiated solutions in which staff are engaged in identifying what will work best
  • take-up of options across a range of negotiated settings may well vary from sector to sector, recognising different job loading and peak gearings
  • managers need be involved in the programme too, not least in terms of setting examples to and acting as role models for those they manage. This means, in the UK, addressing unpaid overtime activities – and it also means active policy engagement with the ‘right to disconnect’ for which Prospect is currently campaigning: the same tools that facilitate improvements can also be used to depreciate working conditions and we need specifically to ensure that workers’ own practices start from a protected right to switch off.

As the UK’s Covid-19 lockdowns ease and calls are made from the usual Luddites for a return to an office-based way of working, either as a result of a desire for managerial control or else to ‘stop the city from crumbling‘, and as concerns rise over the climate impact of travel costs and interest grows in shorter working hours in this domain, too,* the publication of the Iceland trial data is a timely reminder that, not least under this current UK government, whose concern over working time is a well-established point of debate, a post-pandemic future that is not ‘the same as before’ won’t just fall into our laps: it has to be won, which means articulating it and organising around it.

As always: your quickest and best route to getting organised is to join a union.

* A report also funded by Alex Ferry Foundation while Autonomy is a supporter of the 4 Day Week campaign which produced it.

Jumpers for goalposts…

Finishing seventh in the Championship, as seems likely, when the Premiership is in sudden urgent need of six new teams is, perhaps, the most Reading FC thing ever. Although, with Sheffield United already relegated, there is a clear argument to extend the requirement for new teams actually to seven…

I joke, of course: I’m fully in line with every other man, woman and dog in the country that thinks the ‘European Super League’ is the worst idea since, well, they came up with this thing called the Premiership. With only three countries (so far) represented, and without specifically the big German and French teams and with a surfeit of English ones, it is neither ‘European’; neither is it ‘Super’, given that several of those involved would struggle to make it on current form into even a top twenty of European sides; and neither is it a ‘League’, since there is no relegation from it or promotion to it (other than on the principle of who has enough finance to force a bid to join the club).

This is not, however, a post about how greed and financial engineering is ruining football, or about ‘the day football died’ – that happened nearly thirty years with the establishment of the Premier League based on clubs’ desire to maximise income from TV broadcasting rights. Essentially, therefore, the same justification as now except in that the broadcasters were then UK-based; and, now, they are global and with their global ‘fan’base in mind for those clubs which have self-elected themselves to the proposed league. With my own club declaring losses last week for 2019/20 of an eye-watering £42m, up from the previous year’s £30m loss, as well as a rise in gross debt from £68bn to £87bn (for those interested, there is a twitter thread from Swiss Ramble and also a podcast from The Tilehurst End looking at the numbers in more depth), it is quite clear that the scramble for a share in the money as clubs try and get to the table of riches is bankrupting clubs throughout the Championship (and below) while leaving those in League 1 and 2, barring the odd player sale which is also now more difficult than before as clubs hoover up talent and then farm it out to the lower leagues, ever further away from being able to mount a decent challenge.

Players have done very well out of this, of course, but careers are short and it is an entertainment business – although the biggest argument in favour of the good wages that can be had (bearing in mind the percentage of players who actually make it is tiny) is that it is the players (the workers) who are serving all this up (and who bear the opprobrium of social media when things go wrong). Agents’ fees and the player merry-go-round as agents maximise their own income, now extended to managers too – well that’s a very different matter; and the person who first came up with the correlation between wage bills and final league position has a lot to answer for.

The question is, of course, what is to be done about all this – and that’s a significant question, or set of questions, too sizable to be tackled in one blog post. A government enquiry, to be headed by Tracey Crouch MP (an ex-player and an FA-qualified coach), is a decent start, although it remains to be seen just how ‘fan-led’ this turns out to be, and it seems that the beady eye of the Competition and Markets Authority is also beginning to be opened up to the plans. At the very least, ensuring proper fan representation – the reason why the German clubs cannot get on board with the proposal – is a suggestion very worthwhile pursuing to ensure the rights of so-called ‘legacy’ fans. When clubs lose sight of the importance of their fans and the contribution their fans have made to their communities from which they spring, we need to remember that it is the available riches that make this possible. Money has indeed trumped sport – and wriggling out of that mess is tricky, although it is good to see FC United of Manchester, a fan-led operation set up when the Glazers took over, get some publicity this morning, while similar attention needs also to be turned to the success of the fans of Wimbledon FC who lost their club to a franchise operation. Their successes – based on hard work and a shared dream – of such phoenix operations need to be better publicised and understood. It is clear it isn’t ‘jumpers for goalposts’ – these are hard-edged, professional (as opposed to amateur) operations, no doubt – but they do offer a model for how football can be rebuilt away from chasing Premiership riches while still dreaming of earning the right to play them one day. Like a lot of other things, things can only be re-built from the bottom-up.

Abuse of players, particularly black players, on social media needs also to be tackled and we certainly need to ensure that homophobia, particularly in the men’s game, needs to be addressed.

More immediately, it’s clear to me that clubs joining the proposed league must, at the point that competition gets underway, forfeit their place in domestic competitions. With the rumoured additional £300m on offer for participation, they cannot simply swan back into the country at the weekends and demand the ball. That does, however, hurt the fans of such clubs as well as those who aim for their clubs to be playing them one day – and it also raises all sorts of contractual issues not least as regards the existing TV rights deal, which runs until 2022. I suspect that reality will prevail and that nothing will actually be done, should this new proposal survive the scorn now being heaped upon it, as regards sanctions until that runs out – and, while bidders will (rightly) want clarity before any new auction process starts, I can’t see them being happy to bid much for a competition from which the ‘greedy six’ are excluded. That will, of course, have a knock-on effect throughout the game and will, over a fairly short period of time, lead to a sizable shake-up in which more clubs (on top of Bury) are likely to go to the wall. That, plus the fanbase of the big clubs who recognise the issues at stake, highlights the need for a strong, and unified, fan voice about the issues now being raised. Should the proposal die the death it deserves, this doesn’t mean that nothing needs doing: football still needs rescuing from itself and, more especially, from the gamblers and financial engineers.

Players of the clubs in the new proposal should not be barred from representing their country: it is not them at fault – they have had no say in any of this and can control absolutely nothing of whatever schemes their clubs decide to engage in and, while contracted to their clubs, have little realistic chance of mounting any concerted opposition to them. (It does depend on how things work out but I can see the potential for a few restraint of trade arguments.) They are indeed workers with next to no say. With this in mind, I was a little disappointed in the PFA statement which looks somewhat anodyne although, as a trade union, there does need to be time for consultation with members and representatives before anything more definitive, in proper defence of the interests of all those interests who are members of the union, can be raised.

A country united on something, and sufficient to cause an immense distraction – well that’s a rare enough event these days so it is no wonder that this government is all over it. Whether that cause survives the short-termism, the ignorance and the political scheming inherent in anything this government gets its hands on is a different matter.

Rights at work in the platform economy

Readers will know that I have been writing a regular column for Stage, Screen & Radio, the quarterly magazine of BECTU, the digital, media and entertainment arm of Prospect, for a couple of years – all the columns are linked via the specific page on this site which you can find over there on the left. I am paid for this work and the money to do that comes from the monthly subs provided by BECTU members, so I prefer to keep the columns privileged for members of the union for a while, posting them publicly up here only once the new issue of the magazine lands on members’ doormats.

That’s therefore a quarter behind and, editorial and production deadlines being quite understandably what they are, it’s usually a fair bit longer than that. That occasionally means that the column, when put up here, has been a bit caught up by events. This, dear reader, is the case with this particular one, which looks at whether platform workers are employees or contractors. This was originally written in early November last year (the US elections referenced at the outset were taking place at the time) but has now been caught up by events, firstly in the US by a lawsuit filed to overturn the Prop 22 ballot result mentioned in the article’s Intro; and secondly in the UK by the Supreme Court decision in the middle of February in the case of Uber, the driver hire business. You can read plenty more about the Supreme Court decision elsewhere, and not least in my post on the issue below; but I thought I’d post the original column in the usual way; and, for those who saw the original, this time slightly extended and with a few additional links.

What hasn’t changed is the reference to unions keeping a close eye on the situation as it continues to evolve. That remains as true this side of the Supreme Court decision as it did back then. Further, reading the text back again now, I’m also struck by the relevance of the article’s closing paragraph which hints at the importance of seeing, and using, law-provided rights as a starting point on which to build and not seeing them as in some way tradeable. Sweetheart deals – no thanks!

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Whether platform workers – those who sign up to deliver services digitally, or work for delivery companies – are employees or contractors is a distinction likely to become increasingly important, not least in the light of the Covid-19 pandemic.

As voters cast their ballots in the US elections, in several states they were also put a series of other propositions applying to laws within their state. The US political system incorporates elements of direct democracy in which, in some states, legal initiatives can be put straight to voters.

California is one such state, with Proposition No. 22 asking whether voters wanted to support a minimal package of employment rights for those working for platform companies. The story here is complicated, but Proposition 22 essentially prevents such workers, who are not regarded as employees, from accessing a much larger range of employment rights they would otherwise have.

Regretfully, Proposition 22 – supported in a hugely expensive campaign by the big companies, like Uber – was passed by California voters.

Persuasion

Here in the UK, back in the summer before politicians started to talk once more about lockdowns, there was a concerted attempt to persuade people working from home to go back to the office. This had a number of facets. Perhaps the most interesting was the view that working from home drew attention to the notion that working in this way could subject the worker to competition from anywhere across the globe.

A large number of digital platforms offer the opportunity to work digitally – online platforms are not only for delivery, whether that be a person or a meal, but also facilitate a variety of services. Work on these platforms tends to be broken down into micro elements with workers asked to tender for each element. We are witnessing a new approach to Taylorism – the management system designed to increase efficiency by evaluating every step in a production process, breaking work down into simple microtasks – this time not on the production floor for the office. This is sometimes called ‘crowdwork’ or, more frequently, and in an unthinking corruption of the complex jobs done by BECTU members in the entertainment industry, the ‘gig economy’.

Most Prospect and BECTU members who are able to work from home are not in a situation in which their job can be – or will be – broken down into micro elements. That’s trade unionism in action, in no small part.

However, not least under Covid-19, with the gaps in government support programmes being particularly visible in our sector, the temptation clearly rises to look to such platforms as a means of ensuring continuing income during shutdowns where workers have been entirely inadequately supported.

What employment rights might you find when you get there? Well, the line in the sand for platforms seems to be that their workers are not employees, but contractors, where a lower set of rights prevails.

A question was recently put in parliament by Derek Twigg, Labour MP for Halton, whether the government would assess ‘the potential merits of providing greater protections for online platform workers using crowd work platforms.’

The answer came in a two-part way.

New protections

Firstly, a forthcoming (and long-awaited) Employment Bill (intended to set new employment rights in the post-Brexit era) would include a consideration of the options for ‘new protections’ for those in the ‘gig economy’; and, secondly, that the current strategy of the Director of Labour Market Enforcement had already recommended the government examine the threat to compliance posed by online and app-based businesses.

The Director of Labour Market Enforcement is substantially concerned with the informal economy. This actually says quite a bit about what the government thinks of people working for online platforms.

It is, however, actually quite encouraging that employment rights in the platform economy will soon be on the consultative agenda. However, we will need to watch that the big operators in the sector don’t try any California-style ‘sweetheart deals’ over here.

Uber is, after all – and as we know – an employer

This morning’s Supreme Court judgment that workers employed by Uber are, in fact, workers rather than people operating on an entirely bogus self-employed basis is welcome. Uber has been getting away with this kind of regulatory arbitrage for too long and the unions – both mainstream (GMB) and grassroots (the app drivers union) – as well as the officers and representatives, and members, responsible for bringing it to the very top of the UK court system deserve praise and congratulations.

The simple lesson is that unions work – do join one.

The Supreme Court ruled that Uber drivers are workers because:

  • Uber sets the fares and the drivers have no say
  • the contractual terms under which they work are dictated by Uber
  • while drivers are free to log in and out of the app as they choose, their choice of whether to accept rides is constrained by Uber
  • Uber exercises a significant degree of control over how drivers offer their services via specifying age, colour and condition of their car; as well as the route they need to take to carry the passenger. The approval ratings system also has something to say here, too
  • Uber restricts communication between passenger and driver to the minimum necessary to perform the trip; Uber handles all the co-ordination between driver and passenger.

As a consequence of these facts, the Supreme Court agreed with the conclusion of the original employment tribunal that Uber drivers were ‘workers’. The Supreme Court also ruled that Uber drivers were working whenever they were logged in not, as Uber had argued, whenever they accepted a trip request. This important finding in relation to the operation of the working time regulations means that Uber drivers are entitled to the minimum wage in respect of periods when they are logged-in to the app but not engaged on trips. Uber, while now licking its wounds, is clearly thinking about what to do next.

The UK court decision came shortly after a Dutch court decision ruling earlier this week (in Dutch) that employees there of Deliveroo, the courier-based food delivery operator, were also employees on the grounds of the control to which they were subject while at work administered through the (in)famous company algorithm which allocates tasks and which controls ‘the line’ between the production of food and the couriers bringing it to customers’ front doors.

It’s also an important tribute to the work of the UK court system – the lower level specialist courts (the employment tribunal and the Employment Appeal Tribunal) got this decision entirely right, as did the Court of Appeal. Uber has lost at each of the four stages of the UK court system, and all three of the appeals (on how each lower court had applied the law) that it was permitted to make. The decision of the UK court system is, as a result, entirely clear – and this will be important in the future.

This is indeed welcome news for a Friday – but, on Saturday, the hard work comes.

Firstly, the UK court decision is that Uber drivers are ‘workers’ – a slightly strange ‘halfway house’ in UK law which distinguishes between employees on the one hand and self-employed people on the other and, in the middle, the self-employed who are offering their services as part of a business carried on by others. The ACAS website has a helpful summary of the differences between the different classes but, essentially, while ‘workers’ are entitled to some rights of employment, they are not entitled to all and, importantly, they are excluded from unfair dismissal laws, from protection against redundancy and from paid sick leave and parental leave. Furthermore, those employed on zero hours contracts, working ‘as and when’, are frequently classed as ‘workers’. Those gaps (still) need closing.

Secondly, as my colleague Steve Jary, National Secretary for aviation and defence for Prospect, tweeted this morning: the absence of the long-awaited Employment Bill on workers’ rights after Brexit may now be shortened and may well include a clause reversing this judgment. Court decisions are an important source of protection when it comes to rights – but they are only ever interpretations: statute law always comes first and will set aside court judgments. We know that the Director of Labour Market Enforcement Strategy – a government office in charge of investigating compliance with labour market laws, chiefly in connection with the informal economy – is already suggesting action on app-based businesses, which gives a direct feed into whatever the government intends to do about this. We can expect the government to be taking an interest not least because one of the stated reasons for Brexit is that the EU’s regulatory approach is ‘too precautionary’ (£) and that, not least in new economy sectors, businesses need to be ‘set free’ from regulation to innovate further. This is where the clarity of the Supreme Court judgment is really important – there is no ‘confusion’ here for which legislation is necessary in order ‘to clarify’.

Furthermore, Prop 22, a pro-platform ‘gig economy’ law which was consulted on in California in last November’s US elections was passed with support from Uber, Lyft and other platforms in a campaign costing them collectively north of $200m. The venture capitalists funding these platforms – which are perennial eaters of money – have deep pockets in pursuit of monopoly rents and we can now expect similarly intensive, and expensive, lobbying efforts to be made here too to ensure the Employment Bill reverses the decision. Uber will come out of this fighting – and the other platforms will join it.

Thirdly, platform companies are at the forefront of a ‘new world of work’ in which their workers are the guinea pigs. What working conditions are ‘enjoyed’ by platform workers today will, over time, become the new standard for workers in conventional companies elsewhere. This is not only a question of legislation but active defence and pushback in practice. Aspects of working life through the pandemic – with greater use of surveillance software on computers to check what workers are doing while working at home – is one aspect of this while another is to ensure that there is a ‘right to disconnect’ – a right to downtime and non-work time. This is crucially important as the pandemic has trapped us into an existence in which we not only live at home but work from there and, indeed, get our meals delivered there, too.

Finally, there is also a warning for trade unions here, too. It’s not enough to win court judgments – active mobilisation of the workers involved is also extremely important: indeed, the two must go hand-in-hand. This goes well beyond exhortations to join a union and traditional organising efforts. These are fundamental – but, to coin a phrase, they are only ever the basis of trade unionism and they are not enough by themselves. This is about hearts and minds and engagement around actually doing something. It’s quite painful for some of us to realise that the logic of collective action (Colin Crouch) is not all about orienting people towards ‘the agreement’ (Hugh Clegg) but, actually, about the logic of mobilising workers to strive for something; nevertheless, this is an important realisation which must be made. Mobilising is about workers getting out and doing something together, not about joining a union with the promise that something might happen (tomorrow, later) to improve your terms and conditions if more of you join. Gains won in courts, and in agreements, must not only be defended but advanced and ‘staircase’ agreements (reached with a view to establishing an agreement in an employer with a view to improving it) will not function unless workers are not only organised but mobilised; not just collectivised by being brought into the union but actively engaged in entrenching gains and then extending them. Mobilisation is where grassroots unions score heavily – though it is clear also that winning Supreme Court cases is likely to require the support, not to say advice, of a mainstream union.

In short, this is a great win – but it is absolutely not the beginning of the end. The hard work must start now.

EDIT 22/2/21 to put right the previous version’s incorrect inference about drivers’ entitlement to the minimum wage; and to correct the name and affiliation of the grassroots union involved in bringing the action.

The battle over working time

I think it’s fairly obvious by now that the reason why the EU working time directive, and its application in UK law, was not on Hannan’s list was that it’s so very obviously at the very top of it he hardly thought it actually needed to be mentioned.

The assertion late last week by Kwasi Karteng, Secretary of State for Business Energy and Industrial Strategy, that the government had no plans to dilute workers’ rights was believed by no-one, for reasons not least of all that Kwarteng was co-author, along with a number of other leading representatives in this Vote Leave government (Priti Patel and Dominic Raab among them), of Britannia Unchained. This was a call written back in 2012 for an end to the UK’s ‘bloated state, high taxes and excessive regulation’ and (in)famously described UK workers as:

Among the worst idlers in the world. We work among the lowest hours, we retire early and our productivity is poor.

Karteng’s non-credible denial was rapidly followed yesterday by confirmation in parliament that the government is, indeed, looking at scrapping some EU labour laws, including a ‘relaxing’ of the working time directive. Another lesson in the ‘never trust a Tory’ narrative.

In the midst of a pandemic and post-Brexit uncertainty – is, of course, scrapping workers’ rights can scarcely be much of a priority. Working class families are struggling with huge numbers of issues, including insecurity at work as a result of employment laws failing to keep up with the pace of change in employers’ exploitation of them, while still (in substantial numbers of cases) occupying positions as keyworkers keeping this country going. Furthermore, ‘building back better’ post-Covid-19 requires the sorts of consensus-building exercises and extending involvement to workers’ organisations that, actually, comes as second nature in Europe proper but which is clearly entirely foreign territory to this government. By definition, scrapping workers’ rights does not embody much in the way of consensus building.

Other than that, however, I wanted to make two (main) points.

Firstly, Karteng points to ‘being struck’ by ‘how many EU countries – I think it’s about 17 or 18 – have essentially opted out of the working time directive’. This is of course rhetorical nonsense: ‘countries’ cannot ‘opt out of the working time directive’ – EU health and safety laws have general application across the EU and are not available on the pick’n’mix counter. (As indeed should social and employment rights not be either, although that is a slightly different argument.) What he does mean is that member states are allowed to deviate from bits of the working time directive where – crucially, but which is frequently forgotten – this is with the agreement of the individual worker (calling to mind here the blanket forms issued to employees, especially new recruits, and where coercion rather than ‘agreement’ has been the keyword). Alternatively, this can be done – other than in the UK – where there is a collective agreement in place. With the specific maximum 48-hour week limit in mind (the working time directive being about much more than just that), there is a qualification which must be met about the protection of the health and safety of workers being guaranteed. This is all covered summarily, and very usefully, in Opting out of the European Working Time Directive, a publication from the European Foundation from 2015 and bits of which Karteng – more probably an adviser – seems to have read.

In particular, pages 4-5 of the document summarise the positions across the then EU. Broadly, it is not possible for workers to opt (or be opted) out of the provisions across Scandinavia, southern and south-eastern Europe (other than Bulgaria) and Ireland; some, limited opt-outs are available across the swathe of central Europe; while broad opt-outs are (or were) the case in the UK, Cyprus, Malta, Estonia and Bulgaria.

Consequently, the number of opt-outs are (surprisingly) not as many as Karteng would like to portray and, actually, they encompass those among the peripheries of the EU. So, it will not be as easy as all that to remove these protections without triggering a response in kind from the EU as regards the tariffs it will be able to impose, under the free trade agreement agreed and signed before Christmas, where the UK departs from EU norms.

I suspect that Karteng knows this very well and that this exercise is a little bit of testing the waters to see who is listening (the EU will be, of course) and thus to see what he may be able to get away with. But it won’t therefore be much, except at a price: the UK can only depart from EU norms under the agreement in limited, and heavily circumscribed, ways: the price of negotiating with experienced, expert negotiators. The phrase ‘rule taker, not rule maker’ springs to mind as regards the UK’s post-Brexit future – while that, of course, for any number of reasons including among Brexiteers themselves, is simply unsustainable in anything other than the short-term. Again, I suspect Karteng is also very well aware of this. Expect therefore more war, in private of course, within the Tory Party over the next few years. This testing of the waters is being done with that in mind, too.

Secondly is the issue of the direction of reductions in working time. Historically, working time fell for much of the twentieth century but, from around 1980 onwards, such a trend has slowed and even, in some cases, been reversed. There are a number of reasons for this, explained in depth in a very useful paper – The Why and How of Working Time Reduction – written by colleagues from the European Trade Union Institute (I believe an update will also be available shortly). Again unsurprisingly, hours (of full-time workers: the key to the Britannia Unchained phrase) are not lower than elsewhere: such hours are pretty standard but the UK ranked among the highest in the EU.

The working time directive is a health and safety law. It was proposed under a particular section of the European legislative framework allowing a majority vote by member states and its aim is to improve health and safety. Nevertheless, it also improves social rights in allowing workers the opportunity to control, in some small way, aspects of their working time and, thereby, to achieve some measure of influence with the employer as regards their work-life balance. All of this is, of course, why the Tories hate it and why the working time directive is at the top of the list for removal (pro tem: restriction). It also explains very well why it needs to be defended. At a time of the deunionisation of society in general – stout battles still taking place in certain sectors – we can expect to see such gains as were made in working time during the first three-quarters of the twentieth century reversed here too, deunionisation being one explanation for the gains having come to a halt.

As Brexiteers have already implicitly observed, this issue is one that underpins huge aspects of the future social organisation of this country. It concerns not only the decoupling of wages and productivity – with gains in national income not going to workers over the last few decades – but taken instead by capital owners in the form of corporate profits and shareholder dividends. It is not just that, to quote that phrase again, ‘productivity is poor’: it is, but quite clearly wages are even poorer and, in comparison, becoming increasingly so. We know from the theory that such a decoupling leads to rises in income inequality – something in which the UK is, shamefully, among the countries already taking a bit of a lead. But also, with fresh concerns of job loss through mechanisation and robotisation (on top of those lost in the destruction wreaked in hospitality and the arts and entertainment industry during the pandemic, as well as the loss of workers who have, simply, gone away), reduced working time in compensation for the impact of mechanisation on the jobs and security of workers has again come back on the agenda, as indeed has the idea of a universal basic income.

When we emerge from the pandemic, the quality of jobs will also matter and, in this respect, a National Recovery Council, as proposed by the TUC, has a clear role in building consensus and support for a better, more inclusive society. Furthermore, if the loss of substantially younger workers as pointed to by ESCoE is correct, increased mechanisation to deal with the loss of workers is one possible outcome. That may, in turn, raise productivity – but wages, and the labour share in general in terms which also encompass working time, need to rise too. Working hours in the UK are not low – but they do need to be lowered and there are thus many pressures building in that direction.

All this is why the Tories want to knock the working time directive on the head – and, furthermore, why they want to do it now while the pandemic is causing much of a distraction and when this lends itself, at a time of prospective rises in mechanisation, all too readily to people being regarded as ‘lucky to have a job’.

As always: Join a Union. And Organise.

First shots fired in post-Brexit battle

On Wednesday this week, as Washington DC was preparing, on the one side, and not (on the other), for the substantially white privilege ‘revolution’ that did, in contrast, turn out to be of the televised type, the soon-to-be-Lord (Daniel) Hannan, Lima-born and raised and privately educated, published his list of regulatory ‘barriers’ that a post-Brexit UK could ‘disapply’ (trigger warning: post is on Conservative Home). These include (as listed):

  • Temporary Workers’ Directive
  • the REACH Directive
  • the End of Life Vehicles Directive
  • the droit de suite rules and other regulations that hurt London’s fine arts market
  • the Alternative Investment Fund Managers Directive
  • chunks of MiFID II
  • GDPR
  • the bans on GM.

Alphabet soup apart (and I’m not going to decode any of it here), this is quite astonishingly specific and betrays, in part, Hannan’s own petty concerns, some apparent pay-offs to mates and some things of which I suspect he actually has rather little working knowledge.

None of this is of course a surprise: the only surprise is that the Working Time Directive – setting out rest periods and prescribing minimum rest breaks and leave entitlement for workers – commonly thought to be the first target of Brexiteers, isn’t on the list (though Hannan clearly sets out that the EU directives he sets out are non-exhaustive, in which case the WTD surely hasn’t been forgotten). In a move that was clearly choreographed, Boris Johnson held a call with business leaders later the same day asking them to come up with ideas for changing the regulatory environment because ‘the UK would need regulatory and legislative change’ (no ££).

It’s clearly about time we had another ‘red tape challenge’: with two this decade (in 2011 and 2019) so far, on top of certain aspects of the 2012-2014 ‘balance of competences’ review, and the 2014 consulting on ‘gold plating’ the TUPE regulations, there is clearly a mini-industry (not least in media headlines) needing to be fed and sustained. Indeed, you’d almost think that asking the question, rather than coming up with anything practical to do, was the point. Businesses are, by the way, likely to use the opportunity to have a varied but wide-ranging moan over the costs of employing young women who then become pregnant – a somewhat flippant response, perhaps, but one which also has at its heart the implicit core of the problem as to why these ‘challenges’ continue to come around regularly with little apparent effect in practice: the costs to businesses of continual labour turnover as a result of poor employment policies are significantly greater than the costs of complying with regulations which actually raise labour standards; while the regulation that remains in place overwhelming has a clear, and useful, function. For all that it walks around with a target perennially pinned to its back, regulation not only protects but also supports ourselves as citizens in terms of our health, the environment within which we live and the cohesiveness of our society. That is why it is hard to get rid of, despite all the noise its reduction is able to generate.

It will be interesting to see who is listening to Hannan – who is, by the way, an adviser to the Board of Trade as well as President of the Initiative for Free Trade (a well-connected think-tank whose mission is to use Brexit to advance the case for revitalising the world trading system). If Hannan does get his way then, on the strength of this list alone, the Brexit that results will clearly be that of the elites.

Other than that concern, the central significance of Hannan’s post is that it highlights that Brexit will not be over for some time to come – indeed, that we are only at the beginning of a very long and hard road ahead. Given the current policy vacuum at government level, on top of the inability of Brexiteers over the last four/five years to indicate what Brexit should look like other than in terms of simple (‘side of the bus’) slogans, there is inevitably space for people like Hannan to fill with such concepts as deregulation (most obviously, but no doubt among others). Furthermore, the free trade agreement signed on Christmas Eve and the joint UK-EU commissions that it envisages gives plenty of space not only for debate over the tariff costs in terms of a UK which actively seeks divergence from European standards; but also in terms of how that agreement can be developed and improved upon not least in terms of supporting workers’ rights in ways that reflect social policy improvements within the EU. Additionally, while the free trade agreement might solve problems over tariffs, it is – as businesses are already starting to find out – the non-tariff barriers that the single market brought down that are the key to trading successfully. Here, not least in the context of deregulation, there is the rising amount of realisation (see here, for instance; or otherwise here) that, at least in this first week, Brexit actually means more red tape for industry, not less. On top of all this, and rather less prosaically, there is the notion of full independence for Scotland, on which this blog will no doubt have more to say, as well as the question of a united Ireland, the growing YesCymru movement and the existence of support for improved democratic representation within England itself. The price of ‘sovereignty’ is indeed likely to be a much smaller territory over which that dominion reigns.

All these are ways in which the future shape of the UK will be competed over as a result of the Brexit bow wave. Politically therefore, the notion that the word ‘Brexit’ can be avoided – in ways akin to Johnson’s own attempts this time last year to ban the word – is not only itself simplistic but also naive. Labour may not now need to define what Brexit means – but it does need to define what the UK should look like in its wake. The first shots in that war have, at the very least, been fired by Brexiteers which provides some cover for Labour being able to say the word again; and, most certainly, to ensure that the vacuum is filled not only by the likes of Hannan.

In the meantime, it is worth noting that such shots were fired to (not at!) an exclusively business audience. In the context, that’s probably unremarkable in itself – but I wonder how that will go down amongst new-blue voters in so-called ‘red wall’ seats? Was that really the Brexit they thought they were voting for, either in 2016 or in 2019? And did they really believe, in 2019, that they were voting for an end to Brexit?

Clocking big tech: the fight to own your data

This is the text of my autumn 2020 column for Stage, Screen & Radio – the quarterly magazine for members of BECTU, the media and entertainment union and a part of Prospect.

Prospect has been working with a coalition of unions, tech specialists and researchers to develop new approaches to how we take control of our own data.

In July the beta version of one of those ideas – the WeClock app – was launched but soon after Facebook decided to ban the app on its platform. After discussions with the app developers, Facebook has now reversed this decision.

At Prospect, we have long been aware of big data and the need to secure the interests of our members when it comes to all the ways that algorithm-based software can be used at work.

Desktop spying

Indeed, many apps seek to put a ‘spy on our desktop’ – and with more people working from home during the pandemic, the risk increases of employers also wanting to put a ‘spy in our homes’.

Google has invested billions in mapping the world and developing self-driving car technology, because it wants to be in a position to shape our technology choices when it comes to our mobility.

That means knowing where we go, how often we go there and how often (and where) we stop en route. This encroaches into our lives as workers as well as private citizens.

Facebook is not the only example – merely among the most egregious. Earlier this summer, the social media platform pitched that Facebook Workplace, its office collaboration project, would allow employers to control the content of group discussions by banning words such as ‘unionize‘.

It later had to backtrack after complaints by its own employees and the US trade union organisation AFL-CIO.

Knowledge is power

Not least when it comes to the workplace, the data on which our choices are based belongs to us – or should do. Surveillance software undermines that principle and its very existence raises the need for accountability and worker involvement in decision-making about its use. Data needs to become part of our bargaining agenda.

This battleground reveals the rationale for Facebook’s initial decision regarding WeClock: its whole reason for being lies in hoovering up our data about what interests us, analysing that and then packaging it to secure advertising revenues.

Start-ups like WeClock, which enables workers to log their own working hours and overtime to protect themselves from being overworked and underpaid. Crucially it leaves control of the data entirely in users’ hands.

As Christina Colclough, who led the team behind the app, observes, WeClock is a ‘self-tracking privacy-preserving tool we can be proud of’. The more apps opt for such an ethical approach, the more those users will understand what platforms like Facebook and Google operate. And the more people realise the importance of asserting their rights over their data, the more shaky these platforms’ way of operating becomes.

Facebook’s monitoring software, Workplace, is a key tool it can sell to employers facing worker recognition campaigns.

Online activism

I doubt we have heard the last of Facebook Workplace. Lobbyist and employer consultant Rick Berman says the pandemic has encouraged a ‘historic rise in labour activism‘.

He warns that employees worried about exposure to the coronavirus have taken to Facebook and other platforms to share their concerns, giving union organisers greater access to disgruntled workers.

Worker recognition campaigns in the tech giants and elsewhere are certainly growing in the face of increasingly precarious terms and conditions.

In ‘building back better’ after the pandemic, we need to encourage high-trust workplaces where managers are allowed to do their jobs by actively using their own people management skills.

Prospect will continue to articulate the need for better trust, accountability and transparency when it comes to monitoring and surveillance software in the workplace; and for data to become part of the bargaining agenda.

As our workplaces change, our core commitment to empower our members to realise those goals remains steadfast.

O2 and Virgin Media merger

Following a fairly public courtship, with on again-off again speculation proceeding over a while followed by firmer rumours of an impending announcement on Friday last week, O2 and Virgin Media have this morning announced plans to merge their assets (and, of course, their liabilities). The deal mirrors the combination of the merger of mobile and fixed line assets that BT and EE entered into some years ago and regulators are similarly unlikely to stand in the way of Virgin Media and O2. Indeed, they might even welcome a larger-scale competitor to BT.

The deal – intended to be complete by the middle of next year, regulators permitting – has an extremely complicated structure as regards the financial engineering and I’m not intending to go into that here. There are, however, a number of points to note as regards the policy implications of the proposed deal.

Firstly, there is the question of the ‘substantial synergies’ expected to arise from the arrangement – expected to total some £6.2bn net, according to the details set out in the announcement itself. Substantially, this will be in terms of the companies’ cost and capital expenditure commitments, with major implications specifically identified in the announcement in terms of the combining of network infrastructure and IT systems, marketing, general and administration costs and site rationalisations. As we might well anticipate, none of this is likely to mean good news for workers in the industry for jobs or future terms and conditions of employment. If you’re working in the industry – for any employer, not just those that have made the announcement today – and you’re not a member of the union; well, you know what to do: join here if you’re a manager or professional in any capacity; or here if you’re up the poles and down the holes, or in the offices or call centres.

Secondly, it extends the ‘convergence’ of the communications industry (i.e. the coming together of mobile and fixed-line telecoms). Long an industry buzzword, this was facilitated some years ago by the arrival of the smartphone – the computer in your pocket – and companies on either side of what was previously a divide have been a little slow to respond, for reasons that are clearly numerous. But deals of this scale are, pandemic apart, likely both to encourage each other and to lead to bigger ones. So far, convergence has affected companies within a single country, but the bigger deals of the future are likely to be international as death-bed capitalism struggles for one more throe [of the dice] although, post-Brexit, they are, perhaps, less likely to feature companies in the UK. Nevertheless, and especially in anticipation of the likelihood of regulatory approval, it firmly marks out the UK communications market as, finally and ultimately, a converged one as regards the supply of services to consumers, which will have several repercussions.

Thirdly, there are inevitable implications for BT as a result of the merger. What these might be are, as yet, unknown; and much depends on how serious a competitor the merged Virgin/O2 turns out to be in practice. Either way, BT has already been re-organising itself to deal with competition over an extended period, with a sharp impact on workers’ terms and conditions. Such activity might well not be stepped back in the future – and that would really come as no surprise at all.

Fourthly, there is a quite a bit which is going to have to be unknitted before the merger can be allowed to proceed. It is here that Ofcom – the UK regulatory body for communications – is likely to take the closest interest. Mobile operators have, over years, offered their networks to suppliers of mobile contracts who don’t have networks of their own, and have developed a web of extensive relationships with them. Some of these are identified by ISP Review in its comment on the merger announcement and include: Virgin Media’s five-year deal with Vodafone to supply mobile communications, commencing at the end of next year; and Virgin Media’s fibre capacity deal with Three, announced only two days ago. O2 of course also has a range of similar deals, supplying connectivity for the mobile offerings of both Tesco and Sky. Regulators are likely to insist that such offerings continue in principle, as it provides some – perhaps rather superficial – element of competition, but particularly once Virgin has ‘in-house’ capacity of its own, there will be costs in extricating itself from such contracts.

Some unknitting might also have to occur were the combined company to choose a new name for itself. Virgin Media – taken over by the US giant Liberty Media a while ago – currently pays Richard Branson a royalty of 0.25% of part of its consumer, business and content revenues, plus a further royalty on business operations revenues, with both together amounting to a minimum payment currently of £10.5m/year, for the privilege of using the Virgin name. The activities of the Virgin Group in terms of impact on customers’ goodwill is specifically named as a risk factor in the annual accounts. It never rains but it pours eh, Richard?

Fifthly, the deal poses interesting conundrums for the shrinking number of those companies that are left behind – chiefly, Sky, Vodafone and Three. Vodafone has long been linked with Virgin Media, and it may be that it seeks to enter the fray here although it was interesting to hear Karen Egan, telecoms analyst with Enders Research, comment on this morning’s Today programme on Radio 4 that she thinks both Vodafone and Sky are currently ‘off the table’ as a result of debt concerns of their own. Three has no fixed network of its own; Vodafone does, as a result of its takeover of Cable & Wireless some years ago, although its current wholesale associations with both Openreach and CityFibre are suggestive of some limitations in that respect; Sky’s fibre offering is via Openreach and it has no mobile network of its own, existing purely on the back of the networks of others. Within the converged market that the UK increasingly represents, there is little regulatory possibility, as currently conceived, for any of these to seek separately to merge with either BT/EE or Virgin/O2; and, while it is not the purpose of this blog to encourage such destabilising speculation, a more formal link between the three thus looks more likely as a result of this morning’s announcement. Regardless, if Egan is right, then even a merged operation would start not only as the number three operator but with a severe financial handicap. The comms lines between all three, and with their major investors, are indeed likely to be buzzing this lunchtime.

Sixthly, and most importantly of all – join the union. Now.

The Brexit withdrawal bill and ‘healing’

The conclusion of the Commons stages of the Brexit withdrawal agreement in just three days last week, with a majority of 99, gives the impression of a government in a hurry to deliver. Which it clearly is, in the sense of its self-imposed deadline of 31 January – though it seems in a little less of a hurry to deliver the ‘healing’, which cause Johnson espoused immediately post-election and then repeated in his New Year message. Though his wouldn’t, of course, be the first government to preach reconciliation and practise division – Thatcher did something similar in, and then following, 1979.

While the election has settled the principle of Brexit for, er, a generation, there remains a number of problems about what Brexit looks like which will continue beyond 31 January and as the future trade relationship is settled. Chief among these is that, while the 2016 referendum was, as Chris Grey has continued to argue, a vote against something, there has, opinion polls and politicians’ assertions apart, been no attempt to define what it might have been a vote for. Labour’s stance of seeking a fresh deal and then putting that to the electorate remains, in this context, the right stance to have taken in principle, however much it turned out to be electorally unpopular – though that is a battle now lost. In seeking that definition, there is a number of battlegrounds set out in last week’s passage of the Bill through the Commons which indicates the government’s general direction compared to the previous version (full list here):

– workers’ rights being removed from the Bill and re-located to a suggested new Employment Bill. The concern remains that this will be used to drive workers’ rights downwards in a race to the bottom

– a clause giving ministers the power to direct the courts on the interpretation of EU law and to allow lower courts the power to overturn rulings by the European Court of Justice, something of particular concern to those of us worried about workers’ rights

– a removal of the right of unaccompanied child refugees in the UK to be reunited with their families

– a rejection of a series of clauses to improve citizens’ rights and a potential withdrawal of teeth from the ‘independent’ monitoring authority, which has already attracted the attention of the European Parliament, whose role in approving the final withdrawal agreement remains critical

– a rejection of the attempt to impose in the Bill a requirement to seek continued participation in Erasmus, the EU programme facilitating study abroad

– a refusal to consider mitigating the impact on firms in Northern Ireland of the volte face over the presence of a border down the Irish Sea and checks on goods crossing that border east-west, together with the inclusion of ‘Henry VIII’ powers on the parts of the withdrawal agreement focusing on Northern Ireland

– a refusal to countenance a block on the negotiation of future trade deals until parliament had approved an overall mandate. Taking back control did not, it seems, encompass much of a vision for the role of parliament vis-à-vis the government.

The Lords are, given the outcome of the election and the super-majority that the Johnson government now possesses, unlikely to mess around with any of this too much, although Lord Dubs certainly isn’t giving up and the Lords Constitution Committee is sounding the alarm on lower courts being able to overturn ECJ decisions.

On any one of these issues, a government in possession of a desire to effect some actual reconciliation, and even ‘healing’, could have made some moves towards meeting the demands of the MPs sponsoring amendments and to limit the extent to which people not only working but building their lives in this country could be viewed as people rather than as an economic resource with all the division and rancour that entails – but, no.

The response to some of these is that further legislation will be brought forward – but there are no guarantees on that and the content is inevitably currently unknown. The response to others is that meeting such demands would have ‘weakened the hands’ of negotiators and that progress may still be made on them, presumably via trade-offs. That highlights that such issues as workers’ rights continue to be seen as potential bargaining chips – a matter of disgrace. In others, we need to remember that meaningful negotiations, outside the area of a free trade agreement, have all but finished. Furthermore, in terms of understanding, it represents a failure to understand that modern negotiations is based on conversing about the achievement of mutual gains in which your strategy remains hidden but in which your aims are very much disclosed – and, frequently, strengthened by demonstrations of extensive popular support.

There was a potential win – or even series of wins – for the government here which it has simply chosen to ignore.

Instead, we have the spectacle of Brexit ultras in parliament, whose numbers have increased as a result of the election and the deliberate selection of Tory candidates committed to Johnson’s approach, and who are little more now than lobby fodder, seeking to grind its victory humiliatingly into the faces of opponents. Furthermore, we have the ludicrous, time-wasting spectacle of a public debate over whether Big Ben should strike at 11pm on 31 January, with at least the early crowdfunding of the requisite ‘bungs’, i.e. ahead of Mark Francois’s donation appearing to fall somewhat flat (‘bob a job’ has got expensive these days, although it’s probably marginally more cost effective than Francois climbing up there to do the job himself). Not only that, but there is the approval (from the Mayor of London) for a ‘Leave Means Leave’ event in Parliament Square on 31 January, whose triumphalist tone and nature can only be imagined at this stage but which also just chances to coincide in the same place with a gathering of far-right street thugs being planned by the English Defence League. Likely to be a joyous occasion, I’m sure. But, if they want to celebrate it, then they can own what happens in its wake.

Healing it’s not. But then, healing is far from the minds of the ultras and, by definition, this government. Offering anything to the 48% of us who voted ‘in’ in 2016, or to the majority of the electorate which voted for remain parties in the 2019 general election, or to the probable majority of people who would now vote ‘in’ (currently the same as the general election outcome, incidentally) – such as dynamic alignment of rights, the Norway model, Canada+++ or, heaven forfend, single market membership – would be seen as a betrayal of the one true Brexit. Thus, the call for reconciliation is entirely superficial. The ‘People’s Government’ is just for Leavers – or, at least, that section of Leavers which also voted Tory, given that the Tories’ electoral base has become predominantly Eurosceptic.

Oh – and #ReleaseTheRussiaReport. We all know at this stage of Brexit that it’s more embarrassing (probably most of all for Johnson himself) than revelatory. Even were it the latter, it won’t now stop Brexit; as Brittany Kaiser’s (otherwise extremely useful) whistle-blowing revelations that Robert Mercer funded both Leave.EU and Vote Leave campaigns will also not do. Unfortunately. Nevertheless, people being defrauded and then having the wool pulled over their eyes is never an edifying spectacle – and prolonging the period in which the report is not released is just compounding it.