Is Brexit done? Apparently not. A least not quite yet…
Ever since the debate over membership of the European Union gained real traction prior to the 2016 referendum, one of the key focusses for employment lawyers has been the debate over the future of employment law standards that originally came onto the statute books by way of EU directives.
The Retained EU Law (Revocation and Reform) Bill was introduced on 31 January to deal with the array of legislation derived from EU directives that the government initially retained in the domestic legal framework under the European Union (Withdrawal) Act 2018. At the time of the 2018 Act, we were informed that the so called ‘special status’ of retained EU law such as reverence to ECJ jurisprudence or existing EU directives, would be amended and eroded over time through the usual parliamentary process of repeal and implied revocation through replacement legislation.
It seems that since then the government have had a change of heart and have instead decided to deal with all such retained law in one all-encompassing reform bill. The bill sets a deadline of 31 December 2023 for the government to either assimilate, restate or revoke the relevant provisions into, or indeed out, of domestic law.
There are two striking features in this procedure. The first is that it is the government, not parliament, that the bill charges with deciding over the fate of each of the affected retained laws; this is to be done without any parliamentary scrutiny. The second is the deadline of 23rd December next year for all of this to be worked through. The bill’s much talked of ‘sunset provision’ states that unless these laws are actively assimilated or restated under the domestic framework by this date, then they will be implicitly revoked.
It’s also quite a task: 3,800 pieces of retained EU law across 300 unique policy areas and 21 sectors of the economy with twelve months to sift through the lot (barring some provisions delaying certain elements until 2026). This includes the Working Time Regulations 1998, the Agency Workers Regulations 2010, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The bill makes it perfectly possible, albeit we would hope unlikely, that as of 31 December 2023, all of the above provisions will simply disappear by automatic operation of law.
The bill is still in its (relatively) early stages and noises coming from lobby journalists are already pointing to some acceptance that December 2023 is simply too quick a turnaround time for such a seemingly mammoth task.
Furthermore, whether something is legally conceivable does not necessarily make it desirable or even politically possible. However, with the breaks of not only the ECJ but ordinary parliamentary scrutiny soon to be removed as a barrier to repealing workers’ rights, it is the will of the executive alone which could dictate which way the wind blows on the employment rights framework.