EU law in the UK: What will go and what will stay

One of the UK Government’s aims of Brexit was to restore supremacy to domestic UK law and end the special status of retained EU law within the UK. To achieve this, new laws were proposed.

This is through the Retained EU Law (Revocation and Reform) Bill (the Bill), nicknamed by the Government as the ‘Brexit Freedoms Bill’.

What does the Bill do?

Under the original Bill, all law derived from the UK’s 47-year membership of the European Union was to be reviewed and transferred into UK law or “sunsetted” – to use the language within the Bill – in other words, expire, by the end of 2023.

A minister could, by regulations, postpone the “sunset” date of any piece of legislation but only until 23 June 2026 (the 10^th anniversary of the EU Referendum). The original Bill also allowed the UK Government to keep a piece of legislation but in an amended way. This was to be done by the end of 2023.

The Scottish Government fundamentally opposed the original Bill and the Welsh Government raised concerns about it.

The UK Government has recently announced that the 31 December 2023 deadline will now be removed due to concerns that it did not leave enough time to consider all current EU laws and could potentially lead to the expiry of important laws.

The Bill itself has been amended with the “sunset” clause being removed and a schedule of EU laws the Government intends to revoke by the end of 2023 being produced. This schedule was published on 11 May 2023 and contains around 600 pieces of legislation. The legislation not included in the schedule will be retained beyond 31 December 2023 but can still be revoked or reformed following ‘proper assessment and consultation.’

What areas could this impact on?

There is still a huge volume of retained EU law in force in the UK. These laws cover a variety of areas including the environment, health and safety, data privacy, food standards and animal welfare, consumer rights and production standards.

So, ultimately it could have serious implications on charities, businesses, universities, suppliers, consumers, employees, regulatory authorities – really everyone.

When it came to employment law, it was expected that the Bill could affect the Transfer of Undertakings (Protection of Employment) (TUPE), the Working Time Regulations, discrimination and GDPR.

• TUPE
  • TUPE was ‘gold-plated’ by the government in 2006 when the regulations were amended and the protections within were made wider than required by the EU. The introduction of the Bill could have been the opportunity to simplify some areas. For example, the consultation provisions relaxed and brought into line with the provisions for collective redundancy consultations.

• Working Time Regulations
  • Like TUPE, some possible changes to the Working Time Regulations included:
    • Holiday carry-over entitlement: revert to the UK original position of employees not having the legal right to carry over holiday entitlement to the following year due to sickness absence.
    • Calculation of holiday pay: go back to the UK original position of using basic pay only to calculate holiday pay rather than including extras such as bonuses. However, a recent Supreme Court case found that employees who only work for part of the year (e.g., term-time workers) are entitled to 5.6 weeks of holiday pay like employees that work all year round, and that pay should not be pro-rated. This particular stance is not anticipated to change.

•  Discrimination
  • Discrimination laws have been in UK law for around 50 years and there have been no arguments for the abolition of protected characteristics. However, the Bill could have led to a cap on discrimination compensation in the same way as unfair dismissal. There was a previous attempt to cap discrimination compensation but this was blocked by EU law. Watering down the protection for part time workers for less favourable treatment could have been an option.

•  GDPR
  • The General Data Protection Regulation (GDPR) can’t automatically be repealed as it is primary legislation but on 4 October 2022 the House of Commons was told that it is going to be abolished and replaced. How far the new legislation will deviate from GDPR is yet to be seen but it is important to note that most UK companies will still need to comply with GDPR if they want any business in the EU.

What laws will be removed?

With the recent amendment of the Bill, including the removal of the sunset clause, no specific laws other than those included in the schedule will be terminated on 31 December 2023.

What is the current position?

The recent amendments to the Bill have been made under the new Prime Minister, Rishi Sunak, with Business and Trade Secretary, Kemi Badenoch, emphasising that the removal of the 31 December deadline was to avoid ‘the risks of legal uncertainty.’

The final amendments to the Bill were made during the third reading on 22 May 2023 and it is currently in its final stages (consideration of amendments).

With the current version of the Bill, none of the above predicted changes to employment law will happen as a result of the Bill. There are only very minor changes relating to community drivers and posted workers.

The amended Bill means EU law will remain binding in the UK unless it is expressly repealed. In other words, the status quo will largely be maintained, for now. This does not rule out more significant changes following further assessment and consultation.

How can we help?

Anderson Strathern was the first Scottish legal firm to launch a dedicated Brexit unit in July 2016 within days of the outcome of the EU referendum. The Brexit Group’s services include a Brexit audit for businesses, and we have the breadth of experience to offer you valuable insight, analysis and practical advice.

If you have any questions about these changes, to be kept updated on the position or how to comply with the areas of law discussed, contact Robin Turnbull.

Note: this article was originally published in November 2022 and updated in June 2023.

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