Are significant changes to post-Brexit employment law on the horizon? Government publishes the Retained EU Law (Revocation and Reform) Bill 2022-23

Are significant changes to post-Brexit employment law on the horizon? Government publishes the Retained EU Law (Revocation and Reform) Bill 2022-23

Following Brexit there is currently a pot of ‘retained EU law’, consisting of legislation originally derived from the EU which was preserved by the European Union (Withdrawal) Act 2018 at the end of the Brexit transition period.

The Government has now announced that “the time is right to end the special status of retained EU law in the UK statute book” and has set out its plan to bring forward the Retained EU Law (Revocation and Reform) Bill 2022-23 (the “Bill”). The Bill had its first reading in the House of Commons on 22 September 2022 and will enable the Government, via Parliament, to amend, repeal and replace certain retained EU law, meaning there could be significant changes to employment rights and obligations. Here is what the Bill provides for in brief:

  • ‘Sunsetting’ of retained EU law

The Bill will ‘sunset’ large parts of EU retained law, meaning that this will expire on 31 December 2023, unless otherwise preserved. This revocation date may be extended to 23 June 2026 at the latest.  Unless equivalent laws are put in place, this means certain EU retained law would be scrapped automatically at this point.

Under the Bill the Government could:

  • Amend and replace – it will be easier for Government ministers to amend and replace retained EU law using powers to make secondary legislation.
  • Restate and reproduce – the Bill provides the power to restate any secondary retained EU law. This will preserve the effects of current laws whilst removing it from being categorised as retained EU law and, in turn, removing associated EU legal effects and interpretive features.
  • Revoke – the Bill revokes EU-derived subordinate legislation (i.e. UK statutory instruments introduced to implement EU law) and retained EU direct legislation at the end of 2023.
  • Ending of EU law supremacy

EU retained law currently has priority over conflicting UK law passed before the end of the Brexit transition period. The Bill reverses this order, giving domestic law priority over retained EU law.

  • Abolition of general principles of EU law

The Bill also removes the effects of the general principles of EU law from the end of 2023. For example, UK courts are currently required to decide any question about the validity, meaning or effect of retained EU law (so far as that law remains unmodified by UK legislation, and so far as relevant to it) in accordance with any retained case law and any retained general principles of EU law (although pre-Brexit EU case law can be overruled by the Court of Appeal or the Supreme Court). The Bill would repeal this among other effects.

  • Renaming of Retained EU law as ‘assimilated law’

The Bill provides that retained EU law is to be known as ‘assimilated law’ after the end of 2023.

What does this mean?

In its current form, the Bill will result in significant changes to the current EU legislation in force in the UK; both in its status and operation.

Certain EU-derived secondary legislation would be caught by the sunset clause if not otherwise preserved. This would include regulations such as the Working Time Regulations 1998 which cover holiday entitlement, the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, and TUPE (insofar as this implements EU law), amongst others.

We await a date for the Bill’s second reading and will have to see what, if any, amendments are made before it is passed. It will be interesting to see how Parliament uses the powers afforded by the Bill and what EU retained law will be restated, revoked or replaced. It looks like there could be some significant changes to come. It could restate everything, but why prepare a Bill that provides for all options if there is no intention of using them..?

We will keep you updated and will be looking at this more closely at our Employment Law Update on 20 October.

If you have any questions related to this topic, please contact a member of the employment team.

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