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Retained EU Law (Revocation and Reform) Bill

For those of you who missed my last employment law seminar on 12^th October 2022 here is a short article about the Retained EU Law (Revocation and Reform) Bill. I feel very strongly that this could be the biggest legislative change facing employment lawyers since the introduction of discrimination and dismissal laws in the 1970s.

Introduction

The Bill was introduced by Jacob Rees-Mogg MP to the House of Commons on 22^nd September 2022 by stating: ‘all law derived from the UK’s 40 plus years of membership of the EU now either has to be reviewed and adopted/reinstated or it will cease to be. Never was it intended that retained EU law would sit on the UK Statute books indefinitely.’ On 5^th October, the then Prime Minister Liz Truss said: ‘by the end of the year all EU red tape will be consigned to history’.

The Retained EU Law (Revocation and Reform) Bill was published on September 22^nd 2022, by the Department for Business, Energy, and Industry Strategy. The intention of this bill is to automatically repeal any retained EU law (including UK statutory instruments introduced to comply with EU Law). As such, Parliament will be able to amend, repeal or replace the estimated 2,400 pieces of retained EU law in the UK. Any retained EU Law will expire on 31^st December 2023 unless specific legislation is introduced to retain it, or unless the extension date of 23^rd June 2026 is applied.

Taken to an extreme, in an employment context, this could lead to the repeal of TUPE, the WTR re: paid annual holiday, 48 hour working week, part-time/fixed-term work and Agency Regulations as well as GDPR.

Background

The background to this is that in September 2021, the government commenced a review into the substance and status of retained EU law. This resulted in the publication of the retained EU law dashboard, which conducted a catalogue of retained EU law on 22^nd June 2022. Having already identified the different pieces of retained EU law, the Bill now enables the government to decide how to deal with it, including determining what needs to be put onto a more permanent statutory footing for the future.

The Bill will end the general doctrine of supremacy of EU law retained in UK statute. Whilst general principles of EU law do not provide a separate right of action following EU exit, they are to be taken into account when interpreting retained EU law, as is pre-exit EU case law. Should there be a need to preserve the current hierarchy between UK domestic and EU legislation in certain specific circumstances, the Bill also provides a power to amend the new order of priority to retain particular legislative effects.

The Retained EU Law Bill also seeks to correct an anomaly created by the European Union Withdrawal Act which provides for some retained direct EU legislation legislative parity with Acts of Parliament. Therefore, the Bill will seek to do two things. First, the Bill will downgrade the status of retained direct EU law for the purposes of amendment, and second, modify powers in other statutes to facilitate their use to amend retained direct EU law in the same way they can be used on domestic secondary legislation. According to the Government’s position, the purpose of this is to ensure that amendments of retained direct EU law will be subject to an appropriate level of scrutiny.

Structure

The Bill is divided into four parts. First, the ‘Assimilation of retained EU Law’. Second, the ‘Interpretation and effect of retained EU law’. Third, consideration of given to the ‘Modification of retained EU Law’, and finally, ‘Powers relating to retained EU law and assimilated law’.

In terms of drafting, the Bill will only affect secondary legislation and retained direct European legislation but will not impact retained EU Law contained within Acts of Parliament. For instance, the Equality Act 2010 will stay unaffected. The Government’s ‘Equality Impact Assessment’ for the Bill notes that: ‘The equalities protections within scope of the public sector equality duty which are retained EU law, including equal pay protections and provisions against disability, race, and sex discrimination, are largely contained in the Equality Act 2010 which is domestic primary legislation and will not be repealed. Therefore, rights which protect groups with protected characteristics against discrimination will continue.’

 

Conclusion

The Bill has only had its first reading in Parliament, hopefully there will be more clarity and amendment as parliamentary scrutiny takes place. As it stands 2,400 statutory instruments are to be reviewed and replaced into UK law before end of next year or they will cease to be. This is a huge task. This country has a strong track record of employment protection and gold plating ‘EU’ rights. For example, holiday entitlement is here more (standing at 5.6 weeks) than the minimum 4 weeks in Europe. Given the Bill presents a potentially huge legislative change, much work is ahead.

 

Sarah Hornblower

Barrister Colleton Chambers specialising in Employment Law

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