Retained EU Law (Revocation and Reform) Bill

Shortly before, and somewhat overtaken by events following, the mini budget, Jacob Rees Mogg announced the snappily titled Retained EU Law (Revocation and Reform) Bill, the effect of which could be the most fundamental change in employment law for a generation.

The European Union (Withdrawal) Act created the concept of “Retained EU Law”. Essentially, in order to avoid a legislative vacuum when the UK left the EU, a snapshot of all EU legislation was taken, to be preserved as “Retained EU Law”. Parliament could however legislate to overturn provisions of Retained EU Law as it saw fit.

This Bill proposes to revoke all EU derived sub-ordinate legislation by the end of 2023, but also create powers to preserve specific provisions. This reverses the previous position, so the default is that EU derived Regulations will now be scrapped unless a decision is made to keep them.

Large swathes of UK employment law are contained in EU derived subordinate legislation. The Working Time Regulations govern the maximum working week as well as rights to rest breaks and paid holiday. Rights for atypical workers are contained in the Part Time Workers Regulations, Fixed Term Workers Regulations and Agency Worker Regulations. For over 40 years, the TUPE Regulations have governed the rights of employees when businesses and contracts transfer.

Whether or not government does indeed intend to scrap these key employment provisions remains to be seen. But even if they are kept, other provisions of the Bill will have significant consequences. As well as scrapping subordinate legislation, the concept of Retained EU Law itself will disappear at the end of 2023, to be replaced by “assimilated law”. The courts will no longer be bound by retained EU case law. So, for example, UK courts will no longer need to follow the many CJEU cases that have considered the right to paid holiday. The concern is that this will lead to great uncertainty.

If the Bill is passed, there will inevitably be a busy period during which key employment rights are reviewed in a tight timetable. It seems unlikely that all EU derived employment regulations will be scrapped, but some may well fall away. The employment law of 2024 and beyond could look very different indeed.

Photo by Guillaume Périgois on Unsplash