As the Opposition and some Conservative “rebel” MPs try to force a vote on whether the Retained EU Law Bill should proceed or be radically altered, you may be wondering what all the fuss is about and why such an obscure sounding law matters. Surely we all have much more important and immediate things to worry about than some post-Brexit technicality? That depends on your point of view, but here are three reasons why this Bill, if it becomes law, could have a huge effect on legal rights and on our legal system.
- Sunset for EU-derived regulations
This element of the Bill has been well-publicised: it proposes that all regulations in the UK which derive from EU law will simply fall away on 31 December 2023, unless positive action is taken to keep or replace them. This could happen to fundamental pieces of legislation that are relied on daily by employers and employees, such as the Working Time Regulations or the TUPE Regulations. The process of identifying which regulations are affected has not yet been completed.
- Revoke or replace powers
Under the Bill, the government (either the UK government in Westminster or the devolved governments) can amend or replace any sunsetted legislation. Governments will have this power, rather than Parliaments which would normally examine important new legislation. The only constraint is that the new legislation must not “increase the regulatory burden”. There is some guidance in the Bill as to what “regulatory burden” means, but it is not exhaustive so any factors could be taken into account. The temptation may be to seek to “reduce” the regulatory burden by diluting existing legislation.
- Legal interpretation post-sunset
Under our legal system, laws that derive from or implement EU law are interpreted in accordance with underlying principles of EU law. However, the Bill will also “sunset” these principles, meaning that nearly 50 years of legal precedent established in case law will be instantly swept away i.e. the principles that lawyers use to resolve disputes, predict the outcome of cases and to argue them in courts and tribunals.At a general level, the likely outcomes of this are more litigation and less certainty for clients. At a detailed level, it will mean that certain legal rights will no longer exist e.g. the right that women rely on when bringing equal pay claims against higher paid men in different jobs.
The structure of the Bill is likely to mean that on 1 January 2024 either very little will change, because the government decides not to use its powers to change legislation or runs out of time to do so; or a great deal with change in terms of the UK’s legal framework, because important laws are amended and then have to be interpreted in a new way.
From a strictly legal perspective, the Bill is not a necessary measure and there are alternative approaches: we could carry on using EU derived regulations in their current form as we are today and any proposal to change them could be debated in Parliament; and we could carry on using EU principles of interpretation for EU derived laws, or they could be phased out gradually to allow a smooth transition.
For more information please contact Blair Adams.