While the effect of the European Union (Withdrawal) Act 2018 was to preserve a snapshot of EU law as at 31 December 2020 that would be retained in domestic law following Brexit, the broad aim of the Retained EU Law (Revocation and Reform) Bill is to create a presumption that all EU-derived laws will be excised from domestic law from December 2023, unless specifically saved.
The aim of the Bill is to distance the UK's laws as far as possible, both practically and ideologically, from their historical connections with the EU. For example, any retained EU law will be renamed and known as 'assimilated law'. The supremacy of domestic law over EU law is asserted.
As currently drafted, the Retained EU Law (Revocation and Reform) Bill provides that:
- retained EU legislation will fall away by 31 December 2023 (a "sunset clause") unless it is specifically preserved
- ministers may amend or revoke retained EU law swiftly, without the usual Parliamentary scrutiny
- any conflicts between retained EU law and domestic law will be resolved in favour of domestic law (unless the contrary is provided for)
- general principles of EU law will no longer apply and courts will no longer be obliged to interpret retained EU law in accordance with them.
A decision will have to be made about what to keep
The 2,400 odd EU-derived laws that have been listed on the Government's dashboard are all potential candidates for excision, unless there are good reasons to retain them. This will require a positive assessment to be made about what to keep and what to throw away. It is hard to imagine, given the current political and economic uncertainty (not to mention proposed civil service cuts), that the Government is about to embark on a reasoned and systematic review of all those laws by December 2023. It is possible that the cliff-edge date of December 2023 will never come to pass since there is an 'extension' provision in the Bill which enables the Government to postpone 'keep or excise' decisions until June 2026.
Clients and practitioners will find it hard to engage with the detail of this Bill for several reasons. First, it is unclear whether and when (given the existence of a power to postpone decisions until 2026) this will become law. Secondly, it makes turgid reading because it is essentially a Bill for lawyers about the pecking order between different strands of EU law and domestic law. It requires an understanding or crash-course in what EU retained law actually is and the different types of EU law in scope (somewhere along the way it is helpful to remember that EU Treaties and Regulations are directly effective, Directives must be implemented through domestic legislation, there are certain principles of EU law which are fundamental and then there is a whole body of CJEU case law).
What is likely to happen next? What are the likely candidates?
Most clients will be asking, which laws are likely to stay and which are likely to go? In practical terms, is there anything we can do now to prepare? The short answer is that little can be done to prepare until the Government exercise is underway, but businesses and their advisers must continue to keep an ear to the ground.
Bearing in mind the Government's mantra that its main priority is growth, everything it does must be viewed through that lens. With so much uncertainty, it is important to mark out a few bright lines here:
- Acts of UK Parliament are outside scope. So, for example, the Equality Act 2010 (EqA 2010) is beyond the reach of this Bill.
- A few intelligent guesses may be made about the 'most likely candidates' for excision or revision, based on a balancing act between how much of a thorn in the side of business the regulation has been to date, versus how much uproar and business disruption would be caused by eroding specific workers' rights:
- The Working Times Regulations 1998 have been much talked about as a 'likely candidate'. In reality, as the case of Brazel illustrates, the calculation of holiday pay for workers is the biggest time-consuming headache for employers and it may be that this is simplified, doing away with the controversial and complex case law on what is included in 'pay' (the Bear Scotland and related litigation). It is also possible that the obligation to record working time, often not observed in practice, will be relaxed.
- The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) have been talked about in the press as a potential target for reform but it is hard to imagine the Government having the audacity to scrap TUPE altogether or to overhaul a hugely complex set of Regulations. Such a move would throw the public sector tendering landscape into chaos, risking more strikes, at a time when public services are extremely precarious and in disarray. It is possible that post-TUPE contract variation will be made easier to achieve.
- Other Regulations derived from EU law which may be revoked or amended include: the Fixed Term Employees Regulations 2002, the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the Agency Workers Regulations 2010, the Information and Consultation of Employees' Regulations (would the demise of the latter cause much of a stir)?
- It could be an 'easy win' to get rid of certain regulations derived from EU law that are not likely to be as controversial as others if scrapped. Typically, this might be regulations that are not commonly used by vulnerable workers in the public sector. For example, the Commercial Agents (Directive) Regulations 1993, providing compensation on termination for self-employed agents selling goods, are solely the result of a Directive. However, while getting rid of them might appear to be pro-business, it could result in the UK being a less desirable market for agents to operate in, thus limiting business growth.
- While the Government has indicated that it will overhaul the UK GDPR, which largely transposes the EU GDPR, it will want to do so in a way which does not jeopardise the international transfer of data. So ultimately, this illustrates the conundrum at the heart of Brexit: we may end up with a landscape which is not dissimilar to the on we have at present because we need to operate in a way which appeals to international markets.
One of the biggest enemies of growth is uncertainty and at present the Retained EU Law Bill brings a lot of uncertainty.