Who's afraid of the Working Time Directive? - Part 2: NHS

Yesterday I ran through the contents of the Working Time Directive (WTD) and the UK Regulations that implement the law in Britain. With a minimum break of 20 minutes for those who work for 6 hours or longer, and an opt-out-able prohibition on a working week longer than 48 hours (when averaged out over 17 weeks), the rules seem reasonable. In fact, you rarely hear anyone argue against the substance of the Directive in connection with everyday workers. However, the WTD is increasingly linked with the NHS in political debate.

Since the rules apply to doctors, consultants and nurses, concerns have been raised over whether the WTD was impacting on patient care in the National Health Service, with changing doctors breaking the continuity of care and leading to mistakes. Two ECJ rulings – Sindicato de Médicos de Asistencia Pública, which held that “on call” time counted as working time whether or not it was spent at the hospital, and Norbert Jaeger (PDF), which defined when compensatory rest should be taken – are key to this debate. It should be noted that health service workers can opt out of the 48 hour week in their contracts too.

The Royal College of Surgeons is one group of medical professionals against the current rules:

“These on-call arrangements have been scrapped in favour of full-shift rotas. The nature of working a full shift pattern is more tiring when compared to an ‘on-call’ system because of doctors working irregular shift patterns which create a working environment that is impairing patient safety by reducing the number of doctors covering patients and increasing the number of patient handovers between staff, correspondingly reducing continuity of care.

[...]

We believe that proposals to classify on-call time differently and the requirements on the timing of compensatory rest will provide a framework to start to address these concerns for surgeons, but we would also encourage the Commission to look in detail at the sectoral problems for doctors in training with a view to allowing a solution of excluding this group of doctors from the scope of the Directive.”

However, the British Medical Association is in favour of the WTD:

"'The BMA opposes further attempts to renegotiate the [EWTD] or to overturn rulings by the ECJ (European Court of Justice).

'Previous attempts to change legislation have taken many years and securing significant improvements to junior doctor training within the parameters of the EWTD must remain the priority,' the association says.

The BMA also stresses that it strongly supports the ECJ rulings that all time on-call, including inactive time, is considered work."

And the BMA’s Juinor Doctors’ Committee chair, Ben Molyneux has said:

"Tired doctors make mistakes, and we must think of the welfare of doctors and the resultant impact fatigue can have on patient care.

'There is a mounting body of evidence to support the move to reduced working hours in terms of patient safety. While flexibility may be appropriate, scrapping the [EWTD] is not.'"

The Royal College of Nurses supports the rules, pointing out the level of skill and preparedness that needs to be maintained for on-call hours, and call for the definition of on-call time to be included in legislation and for the end of the opt-out (PDF):

“The RCN has called for a phasing out of the opt out on health and safety grounds. There is evidence to support the impact of long working hours on safety and the health and wellbeing of nursing staff. A recent study of the health and wellbeing of 11, 000 health care staff in England found a link between long working hours and increased absenteeism. It also found higher rates of presenteeism (with staff attending work when they didn’t feel well enough to be there). Sleep deprivation was identified as a risk factor for wellbeing.

[...]

The same survey [the RCN’s working well survey] found that 58% of nurses working on call or standby did not receive any compensatory rest. The nature of on call work, particularly in the health sector, often means carrying out safety critical procedures in a relatively unsupervised environment. For this reason, it is essential that compensatory rest is timely and adequate. As mentioned earlier there is a real need for clarity from the Commission around the issue of on call and compensatory rest.”

In this debate there seems to be three different, but related, issues: the protection of workers through regulating working time, protecting patients and care continuity, and the number of healthcare staff. As Molyneux remarked, tired doctors make mistakes, so it’s not self-evident that scrapping WTD rules for healthcare workers – effectively saying that they deserve less rights than other employees – would be to the benefit of healthcare workers or patients. Again, when scrapping the WTD is suggested, there is little to no reference to any policy decision – what this means for the mix of healthcare workers’ rights, patient care, and the shape of the healthcare workforce – so seemingly working doctors and nurses longer is the simple answer to these issues.

Notably, the quotes above are taken from the Commission’s consultation with the industry over how to reform the WTD, and from reaction to debates in the UK Parliament.Currently there are on-going talks between the social partners (employers and employees) in this area, and the Commission is likely to try to introduce reforms for the Council and Parliament to consider if the talks fail. So this isn't necessarily a static area of policy, and it shows that there can be continued policy debates in the EU on existing laws.


Conclusion:

So where does that leave us on the WTD and social and employment matters being a part of the single market? Essentially there are two separate issues when it comes to the WTD and legislation like it: (1) is it a topic for valid debate and legislation at a European level? and (2) is the Directive itself any good?

Since the single market covers an economy of around 500 million people, who are employers, employees, and consumers, how the market is run and regulated affects everyone. The single market isn't some sort of alternate dimension that delivers food and drink from France and Italy to supermarket shelves, but an economy that people work and live in, so social and environmental standards are naturally an issue for consideration. The need for minimum European standards in these areas is a valid topic, and, especially as Member States and citizens want to protect their welfare states, actually important to the legitimacy of the single market that it can recognise these issues.

And the WTD? It's clear from these 2 posts that I'm personally in favour of it, but it's more important that the debate when it comes to this kind of legislation has more substance. If a political party thinks that these minimum standards should be scrapped, then that's a pretty radical proposal and deserves a full debate on the alternatives.

Some notes on the UK's EU debate

After yesterday's post on the UK and the European Social Contract, which was written from the general point of view of the Member States and the compromises between their national social contracts, I thought I'd just note a few aspects of the current public debate in the UK on the EU. I'll not cover any specific groups, but just the general state of the public discussion.

1. Renegotiation for...? Despite all the talk of bringing back powers from Brussels, there isn't exactly a clear idea of what powers should be brought back. Social policy seems to be the only area that's highlighted, but the tone of the debate suggests that it matters more that a big victory is achieved by the UK for bringing a policy area home (and that the papers can run with this), rather than there being a specific goal. While it's understandable that the government wants to keep its cards close to its chest so it's easier to claim a victory, if there's such a public groundswell against the EU relationship, it's remarkable that it hasn't crystallised into a key demand yet.

2. The Internal Market as an Ideal. The internal market is viewed as an ideal in isolation to the rest of the EU and simply as a free trade zone, whereas it's deeper than that and requires an extension of the national social contracts (into a form of European Social Contract like I argued yesterday) to maintain its legitimacy.

3. There is no set of plans or reforms that have been demanded for which repatriation of powers is necessary. This links into the previous points, since it's very vague what areas the government will seek to bring home, and the social contract aspect of the EU isn't fully understood (not that it is elsewhere, but there does tend to be a greater understanding of the connection between economy and society in these terms). How does the UK want to change its own social contract? There have been arguments in the UK over financial regulation and whether it should be made easier for businesses to fire people. The lack of ideas and debate about what the UK will be following this repatriation of powers is amazing. What is the UK prevented from doing - or what kind of country is it prevented from being?


4. A referendum on a negotiated settlement could easily fall prey to a Eurosceptic (right) - (ambivalent/more pro-EU) left-wing alliance too. Without a clear sense of direction or purpose over what the UK will do or become with repatriated powers, there is a danger that a referendum would fail due to an alliance between Eurosceptics who reject it as too weak, and those who fear that the national social contract will be redrawn in a way they don't want. I would guess that as the debate becomes more specific over policy areas (e.g. social policy), there will be more questions raised over what will be done with these powers (e.g. maternity leave). It will become easier to paint the renegotiation as an attempt to achieve deregulation and a shrinking of the state, and this may feed in to the referendum campaign.

5. Assumption of alliances. I mentioned this yesterday that for renegotiation there is an assumption that the Northern Europeans want the UK in the club to balance out the others and will help the UK with its deal. However, if the UK withdraws from more legislative areas or sets that as its goal, then it signals that it will be a less useful and influential ally in the future for these countries, making it less attractive for these Member States to spend their political capital in Britain's favour.

It seems to me that there needs to be a debate on how the UK wants to change itself and how it sees itself as a country before it decides how it wants to change its relationship with the EU.

UK renegotiation and the European Social Contract: Free-rider Status?

Today Open Europe argues, on their blog and in The Telegraph, that the Norwegian model is a bad model for the UK to pursue, and that the British government should try to negotiate better terms within the EU rather than leaving to join the looser EEA. In arguing this, Open Europe take the argument of those who support either the status quo or further integration - that EEA membership or a Swiss model relationship with the EU would lead to a loss of political influence but require high levels of acceptance of rules decided in Brussels - and uses it to support the argument that the UK can get a special relationship within the EU. The UK, the argument goes, is such an important market, and Germany and other northern countries want the UK to remain inside the EU as part of a market-liberal alliance, that the UK can win a place as a member of the internal market, but opt-out of pretty much everything else.

This misses the point of what the internal market - and the EU - actually means to the rest of the Member States.

Back in the winter, when David Cameron wielded the British veto on treaty change, there was a political storm over whether Cameron negotiated well or not, but also a wide acceptance that what the UK asked for was reasonable. I argued that it wasn't, given that it was reversing integration in the internal market and that it would run counter to even the interests of the more traditionally UK-aligned Member States. In the UK the EU is portrayed as a free trading agreement that has run out of control, but the internal market itself is more than that, and the fact is that the rest of the EU needs to exist to politically support the internal market.

The internal market goes beyond a free trade agreement and a customs union because it's not just about getting rid of tariffs at the borders, but about creating an economic and legal space where businesses and people can move and work and provide goods and services without obstacles being thrown up by different regulatory systems. This means that there needs to be some harmonisation and some mutual recognition of rules and standards.

Which brings us to the "European Social Contract". Yes, despite all the fallout and arguments of the Eurozone crisis, I would argue that there is a basic social contract at the heart of the EU, which is also important to ensuring that the internal market has the political legitimacy to exist. The internal market covers a massive economic space and its regulation has social, economic and environmental consequences. Given the post-war social contract in Europe - essentially that the state has a place in ensuring the social welfare of the people both as a moral duty (it's seen as part of "what the government does", and in order to provide a bulwark against extremism and social instability - and a crude deregulation of markets within a European space would threaten national societies and their identities. The social and environmental legislation and the elements of redistribution that exist in the EU are an attempt to preserve this social settlement while unlocking the economic potential of such a large continental market (we'll ignore the history of integration being seen as a way of ensuring peace).

While the internal/single/common market has been elevated to an article of faith in the UK, really it relies on the social, regional developmental, redistribution-orientated and environmental faces for its political legitimacy. Would the other Member States not only be willing to give the UK full access to the internal market and let it leave the areas that sustain its political legitimacy, but also let it retain its political influence in votes in Brussels? It's a hard bargain to drive to say that you will have full benefits in the areas you like, but opt out of all other obligations. I don't think other Member States would be willing to open up their markets fully to a country that will not accept its part of the European Social Contract. It's up to Britain if it wants to reduce workers rights and social and environmental protection, but why should the other Member States provide the UK with unfettered access to the internal market if it does?

This is not asking for second or third tier membership, this is asking for Free-Rider Status.

The argument that the UK is too important to the more market liberal Member States to let Britain leave - as has been argued elsewhere too - also forgets to touch on the UK's political weight and influence as a Free-Rider Nation. The UK - and probably its MEPs - would not have a say in the areas that the UK opts out of. What use is the UK as an ally here if it doesn't have a vote? This is another aspect of the UK's negotiating position that is just not recognised in the British debate: the more the UK opts out or talks about opting out, the less valuable and reliable it is as an ally for the other Member States. After all, why should you put your political capital on the line for a country that's half out the door and in little position to help you in return?

There's no such thing as a free lunch, and in the EU there can be no such thing as a Free-Rider Nation.


UPDATE: The Centre for European Reform explores the Norwegian and Swiss options in more detail.

The Troubles of the New Fiscal Compact

Yesterday I wrote about the left and the new fiscal compact, and I've noted that the centre-left PES seems to be hoping that the French and German elections will help replace our current Merkozy with a PES version. EUObserver has reported that a majority of the French public (52%) are opposed to the (as yet undrafted) EU deal on fiscal union, largely following left-right lines. The Socialist challenger for the presidency, Francois Hollande:

"...announced that he would renegotiate the document.

"If I am elected president, I will renegotiate the agreement to put what it lacks today," he told RTL.

He said that he would “add what is missing”, mentioning he would push to include intervention from the European Central Bank, the creation of eurobonds and a financial relief fund.

“Finally, there must also be growth,” he added. “Without growth, we will not reach any of our objectives of deficit reduction.”

The Frenchman attacked the core concept of the new agreement, a ‘golden rule’, or balanced budget amendment that should be inscribed into constitutions, in effect preventing future governments from exercising expansionary fiscal policies.

Asked about the golden rule, the candidate said he would not vote for it “under this logic”."

While not all of the troubles fall along clearly drawn left-right battlelines, I think it's fair to say that it would be a mistake to read in a support for the UK negotiating position, as the issues seem to be based around the content of fiscal union rather than either the question of having a fiscal union or voting arrangements for regulating the financial services. Apart from the right-left divide is the concern of the non-Eurozone countries, like Hungary, that it would lead to tax harmonisation even outside the Eurozone. I don't know if this is being discussed (it wasn't mentioned in the deal produced last week), but it seems unlikely that there will be tax harmonisation even for the Eurozone, given so many Eurozone members are against it.

But the main issues will be those Hollande has highlighted: how much solidarity there should be in fiscal union. Merkel is kidding herself (or talking up the value of the deal for her domestic audiance) if she thinks that the deal on the table means political union - the greatest challenge to the deal will come from the push against the maintanence of the German sacred cows of retaining the ECB's current role and the ruling out of Eurobonds. However, it is doubtful that these ambitious goals could be won as well as removing the "golden budget rule" (who knows, maybe any financial relief fund would be sold as a counter-balance to national austerity brought about by the golden rule). The question is whether this pressure (and that of the markets) will force the negotiations to move further and further away from the starting points agreed on this month...