Employment Law: Is the Retained EU Law (Revocation and Reform) Bill, the real start of Brexit?

On 22 September the Government published the Retained EU Law (Revocation and Reform) Bill (the “Bill”) which may be the first significant salvo in revising EU employment law protections which were enshrined into UK law by virtue of our membership.

When we left the EU, the default position was that existing UK law which was derived from EU legislation would remain as ‘retained EU law’ unless there was legislation to the contrary; this meant that around 2,400 laws derived from the UK’s forty year membership of the EU remained in force post-Brexit. This ‘retained EU law’ dictated large parts of the UK’s legislation on employment law, as well as many other areas such as data protection, financial services, competition law.

What exactly will the Bill do?

The Bill is a ‘next step’ in the Brexit process. It provides that all retained EU law will be automatically revoked on 31 December 2023, unless any legislation is introduced to retain, restate (meaning, rewrite) or extend the deadline.

This is effectively setting retained EU law alight and waiting to see which laws will be pulled from the fire.

The Bill could therefore see an end to:

• TUPE (under the Transfer of Undertakings (Protection of Employment) Regulations 2006;
• paid annual holiday (under the Working Time Regulations 1998);
• parental leave (under the Maternity and Parental Leave etc Regulations 1999);
• 48 hour working week (under the Working Time Regulations 1998);
• part-time and fixed-term workers regulations (under regulations passed in 2000 and 2002);
• agency worker regulations (under the Agency Workers Regulations 2010); and
• data subject access requests (GDPR).

The eagle eyed amongst you will note that this list of ‘legislation at risk’ are all Regulations. This is because the Bill only has the power to revoke or amend laws derived from the UK’s membership to the EU which were brought into effect by means of ‘secondary legislation’ like Regulations. The Bill would not have the power to overturn UK acts of parliament, such as the Equality Act 2010, because this is UK law and not retained EU law.

The Bill seems to appreciate that reviewing 2,400 laws by a short deadline date of 31 December 2023 is a hefty task. As such, the Bill explicitly provides in clause 2, that this deadline may be extended up to 23 June 2026, which will be the ten year anniversary of Brexit.

It would be extraordinary and unexpected for these protections to be allowed to lapse entirely particularly because in some cases, the UK not only brought in the EU requirements but went further and enhanced (known as ‘gold plating’) some of the provisions (TUPE being an example).

It is expected that retained EU law will largely have their deadlines extended, be retained or restated. Although, crucially, no one yet knows what will happen, and predictions on which laws may be retained or amended are all speculative.

If the Bill is passed; how would existing legislation be introduced to replicate or restate retained EU law?

As mentioned above, retained EU law does not include Acts of Parliament. This means that secondary legislation, such as Statutory Instruments, Regulations, Orders or Rules which were used to implement EU laws may be revoked or rewritten, come the deadline and these changes can be made by way of Statutory Instruments.

Whilst Acts of Parliament are required to be passed by Parliament, Statutory Instruments do not require Parliamentary approval and although, technically, ministers must allow Parliament to have sight of draft Statutory Instruments to allow an opportunity for scrutiny or refusal, in reality this process allows for less scrutiny and challenge than an Act of Parliament and, if the Statutory Instrument is not agreed, the default position under the Bill would be that the relevant law will be automatically revoked.  It is relevant to note also that Parliament has not rejected a Statutory Instrument since 1979.

The Government’s press release can be seen here.

We will be closely monitoring the position and will issue updates through future blogs. For the moment: watch this space.

If you have any queries about this matter, please contact Linky Trott or any member of the Employment team.

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