On 17 January 2017 the Prime Minister set out the 12 principles forming the government’s agenda for Brexit negotiations. It is now clear that the government proposes a “hard” Brexit in which the UK leaves the single market for goods and services and takes control of both our laws and inward immigration from the EU. In addition, Mrs May repeated her commitment to protect workers’ rights which she first made in her speech last October at the Conservative Party Conference when she said “existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister.” Mrs May’s speech was light on detail about how she intends to guarantee employment rights derived from EU law, what rights will be guaranteed and what Parliamentary process would be required to repeal or amend them in the future.
The Great Repeal Bill
The government intends to enact new legislation, the Great Repeal Bill, to repeal the European Communities Act 1972 (which provides for the incorporation of EU law in the UK’s domestic law). The Bill will come into force as an Act of Parliament two years after the government triggers Article 50 of the Treaty on European Union. We anticipate that the Great Repeal Bill will have the effect of converting existing EU employment laws into domestic law, so that workers will have the same protections after Brexit as they enjoyed before Brexit.
EU derived employment law comprises a mixture of primary legislation (Acts of Parliament) such as the Employment Rights Act 1996 and the Equality Act 2010, secondary legislation (Statutory Instruments) such as the TUPE Regulations 2006 and the Working Time Regulations 1998 and decisions of the Court of Justice of the European Union (CJEU). The Great Repeal Bill is expected to confirm that EU based employment law existing at the moment of Brexit will continue post Brexit in its then current form as either primary and secondary legislation (which can be repealed and amended quickly without full Parliamentary debate).
What about future decisions of the CJEU?
Mrs May confirmed in her Brexit speech that she intends the UK to take control of our own laws. This means that, post Brexit, the Supreme Court will become the final arbiter of employment disputes in the UK and the CJEU will no longer form part of our judicial system.
We expect that the Great Repeal Bill will effectively “freeze” EU jurisprudence as of Brexit day so that any CJEU judgments before that date will still be binding on the UK but those published afterwards will not. This principle would mean that, after Brexit, former EU based employment laws would continue to be interpreted consistently with applicable CJEU case law but not with any future developments in such laws or decisions of CJEU.
How long will EU employment rights be guaranteed?
The fast track procedure for amending EU employment laws enacted in the UK through secondary legislation means that Mrs May’s “guarantee” could be short lived if there is a change of prime minister or indeed of government. Concerns have been expressed that a future government could amend former EU regulations on a whim, without having to introduce a bill and full parliamentary debate in House of Commons and the House of Lords.
To raise the profile of these concerns, in September 2016 Melanie On, Labour MP for Great Grimsby, put forward a private members’ bill under the Ten Minute Rule entitled Workers’ Rights (Maintenance of EU Standards) Bill. The Bill aims to protect EU employment rights so that primary and secondary legislation in the UK is interpreted so as to give effect to EU employment laws. The Bill had its first reading and is expected to have its second on 24 February 2017. Few private members’ bills are ever enacted and it is expected that this one will eventually wither on the vine.
The Great Repeal Bill will be introduced in the next parliamentary session which begins in May or June 2017 and it is hoped that the position will become clearer then. As with all things Brexit, detail is thin on the ground and so we must wait and see.