The writer is a barrister specialising in employment law
The 40-year conflict between the Conservative party and “social Europe” did not end with Brexit. With the recent publication of the retained EU law (revocation and reform) bill, ministers want to demonstrate closure is near. Rights derived from EU law, including employment rights, will be pushed off the cliffs of Dover at the end of 2023 — unless someone decides to rescue them.
Hopes of ditching EU social legislation, long nurtured by some Brexiters, were initially frustrated when Theresa May proclaimed that employment rights, far from being removed after Brexit, would be enhanced by the Tory party, “the true party” of workers.
Key measures, such as the working time regulations, the agency worker regulations, and the Tupe regulations regarding protection of employees’ rights during contracting out, survive unaltered, along with the case law interpreting them. Now, it seems Liz Truss wants to show that patience has run out.
So the bill’s opening three clauses dramatically announce the “sunsets” of retained EU law. All EU-derived subordinate legislation, such as the working time regulations, will be automatically revoked at the end of next year. A minister may extend the date but not beyond June 23 2026 — exactly 10 years after the referendum. Other provisions seek to remove any lingering taint of EU law, including renaming it “assimilated law”.
Sunset clauses offer a nice soundbite, but the bill’s dramatic gestures exceed what can be delivered. Even the most zealous Brexiter knows that it would not be popular to end the right to annual leave on December 31 2023. But nor is it feasible to replace this and all the other employment regulations with homegrown legislation beforehand.
To resolve this dilemma, buried in the detail of the bill are provisions that offer a retreat from the cliff edge. A minister may delay the sunset of specific regulations. Or pass regulations that “restate” legislation — this, rather than revocation or replacement, is likely to become the default mode for dealing with the impossible task the bill sets. Expect to see EU-derived regulations remaining on the statute book after 2023, perhaps with a more Anglo-Saxon-sounding title, to be tinkered with later.
The bill’s principal casualty is legal certainty. While the government has published a dashboard of “retained EU law”, it has given no indication of which regulations are in line for summary execution, which will be given a stay until 2026, which will be “restated” and which replaced. Businesses and workers are in the dark.
Greatly exacerbating this uncertainty is what happens if regulations are “restated”, when the same words magically cease to be interpreted as they were before. Over many years and after much litigation, decisions of the European Court of Justice and the domestic courts have clarified the practical operation of the right to annual leave. The same applies to the 40-odd years of cases clarifying TUPE protections of employees’ rights.
These judgments will no longer be binding. Workers and employers will be back at square one. The whole lengthy and expensive process of appeals will have to be repeated. Even the most enthusiastic lawyer views such a Sisyphean task with dismay.
The bill also aims to co-opt judges in the cleansing process. Extraordinarily, it allows the Court of Appeal or Supreme Court to depart from existing, binding domestic cases on legislation infected by EU law if they consider it “right to do so”. They must have regard to whether the domestic precedent was influenced by ECJ cases the court doesn’t like, circumstances have changed or the existing precedent “restricts the proper development of domestic law”. These opaque provisions require judges to take decisions that hardly have the character of “law” at all. A government that has repeatedly criticised the judiciary for making political decisions is now expressly inviting them to do so.