November 9, 2016
The decision by the UK electorate to leave the European Union has created widespread uncertainty in almost all areas of law, with employment law particularly affected. A large amount of present UK employment law has its base in EU law, which means a withdrawal from the EU could result in UK employment rights no longer being guaranteed by the EU. This leaves both employees and employers in a state of flux and uncertainty, and the approach that has thus far been taken by the government appears to have been driven, to a very large degree, by a desire to create a sense of continuity. Both the Prime Minister Theresa May and Secretary of State for Exiting the European Union, David Davis, have repeatedly sought to offer reassurances that the rights of workers will remain largely unchanged post-Brexit. Given the political situation, however, it is entirely possible that this may end up being simple rhetoric rather than a deliverable result.
The mechanism which the government has devised to undertake the complexities of the legislative landscape once Article 50 has been triggered will see little change in the immediate aftermath of Brexit. Furthermore, the forces within the party which helped drive the move towards EU withdrawal still carry momentum. Emboldened by the somewhat unexpected Brexit vote and determined to procure as hard a version of that Brexit as possible on the back of this, one would speculate that the leading advocates of leaving the EU would look upon a radically revamped employment law as a highly positive outcome. EU driven employment law has long been seen, in such quarters, as a barrier to business and its growth.
These positions must be kept in mind when considering the likely effect of the Great Repeal Bill, the instrument through which the government intends to deal with the legislative fall-out following EU withdrawal. The bill, which was announced in October 2016 and will be enacted at the very moment at which Brexit becomes a reality – two years after Article 50 has finally been triggered – is planned to have a dual purpose. The first will be the repeal of the European Communities Act (ECA) 1972, but it is the second effect that will impact employment law. When the Great Repeal Bill comes into force, all current EU legislation will be enshrined in UK law, leaving the government free to repeal, retain or amend individual aspects of that law at their leisure. The irony is that the ‘repeal’ bill will, in effect, be a continuity bill, ensuring that nothing changes in terms of employment law, at least in the short to medium term. Thus, the Great Repeal Bill was designed by the government to satisfy the demands of the pro-Brexit lobby in strictly symbolic terms (since the bill won’t actually be enacted until after the UK leaves the EU, the repeal of the ECA will be strictly cosmetic), at the same time as avoiding the legislative chaos likely to result following a total repeal of EU legislation.
There are a number of issues which are likely to impinge upon the effectiveness of this plan, a couple of which will be discussed here. The first of these is the previously discussed input of heavily pro-Brexit voices likely to be pushing for a swift repeal of what they regard as unnecessary EU laws – likely to include employment rights. The latest voice to join this chorus belonged to Grant Shapps, former chairman of the Conservative Party, who called for a “sunset clause” to be included in the bill, meaning that any laws emanating from the EU would automatically be removed from UK law after a period of 5 years.
The second issue is the High Court decision taken on 3rd November 2016, ruling that the government does not have the power to begin exit negotiations from the EU without parliamentary approval. The Government intends to appeal to the Supreme Court, meaning that the full ramifications of this ruling remain to be seen. Given, however, that the government seems determined to maintain executive control over as much of the process as possible, it seems certain that to force a shift in this approach is at the same time likely delaying the triggering of Article 50 itself.
This latest development would seem to primarily impact employment law in the following ways: the process of change is likely to be slowed, and the stances of those on both sides of the debate appear to be hardening further. These could be seen both in the immediate aftermath of the ruling, and in the following days in the press. What remains clear is that, for the short to medium term, little will change in the field of employment law. In the longer term, it will be the politics and ideology driving either a hard or soft Brexit that will determine the final impacts of the referendum result on the field.
Michael Farrelly is a solicitor specialising in employment law at Excello Law