Working through Brexit
Tristan is the Founder, Publisher and Editor-in-Chief at LawSpring. He is also a future trainee at a City law firm and is currently completing the Accelerated Legal Practice Course
Prior to the Brexit referendum, prominent voices in the Conservative Party — namely, Boris Johnson, Michael Gove and Priti Patel — saw ditching EU regulations, including employment regulations, as one of the major benefits of Brexit. Now, in a less determinate post-referendum world, pragmatism and electorate appeal have trumped economic ideology. Theresa May has promised that workers’ rights will ‘continue to be guaranteed in law’ after Brexit and even ‘enhanced’. But how will it work?
The stated aim of the then Great Repeal Bill was to provide clarity and certainty for citizens and businesses. To that end, what is now the EU (Withdrawal) Bill (EUWB) will initially convert the existing acquis of EU law into domestic law. Any question as to the validity, meaning or effect of any ‘retained EU law’ is to be decided ‘in accordance with any retained case law and any general principles of EU law’. This much is encouraging to the extent that EU law is the source of a significant number of the employment rights enjoyed by UK workers and the Court of Justice of the European Union (CJEU) tends to interpret social rights in the employment sphere widely.
However, the veneer of comforting certainty masks troubling complexity. The importance of EU rights is not just quantitative but also qualitative: EU rights are supported by strong EU rules on how those rights must be protected and enforced. By leaving the EU, the UK will no longer be a Member State to which EU obligations will apply, regardless of the EUWB. Contrary to the Government’s assertions, the legal implications are not certain but are likely to cause negative impacts on workers’ rights. The initial conversion of rights on exit day is not intended to endure and what remains is a ‘politically charged question’.
The first issue is that, notwithstanding May’s promise, workers’ rights derived from EU law have no guaranteed status under the EUWB. While EU rights are converted into domestic law on exit day, the EUWB provides that, thereafter, those rights can be removed by means of delegated legislation. Controversially, the EUWB contains Henry VIII powers which permit ministers to make delegated legislation to ‘prevent, remedy or mitigate’ EU laws that operate ineffectively or otherwise suffer from ‘any other deficiency’. These powers have received significant attention, and rightfully so, given the Government’s unyielding desire to remove the ‘red tape’ of EU social regulations, coupled with the breadth of the executive powers the EUWB would confer upon ministers during the Brexit process. Important EU-derived rights such as holiday pay and parental leave, which are typically considered by Conservative governments as too costly and burdensome for employers, may be particularly vulnerable.
That said, controversial Henry VIII powers should not detract attention from existing powers that might be applied to similar effect. For example, the Legislative and Regulatory Reform Act 2006 provides that a minister may introduce a statutory instrument to remove ‘any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation’. For this purpose, a ‘burden’ includes a financial cost or an ‘obstacle to efficiency, productivity or profitability’. This is a political decision, which a Conservative minister will likely make in favour of the employer. It is, therefore, not hard to imagine how these powers could be used after exit day to repeal, revoke or amend the domestic law counterparts of important EU social rights in much the same way as the Henry VIII powers. Thus, even by existing powers, legal protections for workers’ rights may well find themselves at the mercy of hostile political forces.
The second issue relates to the status of EU case law under the EUWB. EU case law predating Brexit will have the same binding force as Supreme Court judgements in relation to retained EU law. After Brexit, EU case law will not apply to new or modified domestic laws, nor will post-Brexit judgements of the CJEU have the force of precedent. Unfortunately, the simplicity of this approach veils unreasoned pragmatism. According to the EUWB, ‘retained EU law’ includes EU-derived domestic law as well as EU law. But the CJEU only rules on the meaning of EU law, not domestic law. Therefore, its judgements cannot have binding force in relation to retained domestic law.
The simplicity of the EUWB’s approach to the status of EU case law also hides reduced rights protections. The EUWB provides that a court ‘need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so’. According to the Explanatory Notes, a court may do so when the meaning of retained EU law is unclear and, if the retained law is domestic legislation passed or made before exit, it must be interpreted, as far as possible, in accordance with EU law. However, this strong interpretative obligation will not apply to domestic legislation passed or made on or after exit day, paving the way for arguments that domestic law should no longer be stretched to comply with EU law. It would, presumably, no longer be open to a court to effectively ‘rewrite’ domestic provisions to be consistent with EU law – a power recently exercised by the Court of Appeal in British Gas v Lock in interpreting Regulation 16(3) of the Working Time Regulations so as to conform with certain EU law requirements relating to the calculation of holiday pay.
Reduced rights protections do not end there. While the EUWB provides that courts will be required to interpret retained EU law in accordance with retained general principles, there is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law. It may be that courts will simply base their decisions on the principles of the common law or international treaties (to which the UK is a party) which mirror principles of EU law — as the Supreme Court has recently done in R (Unison) v Lord Chancellor, in which it held that employment tribunal fees breached the common law principle of access to justice and the right to a fair trial found in the European Convention on Human Rights (ECHR). Unfortunately, those principles provide, at best, a distorted reflection of those found in EU law. The CJEU has established the principle of effectiveness, which requires that domestic procedural law must not make it impossible or excessively difficult to enforce rights derived from EU law. That principle, now provided in core EU law, guarantees at least the same level of protection as the ECHR, with the additional supplement that it cannot be overridden by primary legislation. Moreover, there is no analogue in the ECHR or the common law to the requirement of effective remedies derived from EU case law, including uncapped civil compensation. The ECHR, and particularly the common law, are unlikely to provide equivalent rights protections in the future.
Fundamentally, the EU principle of effectiveness provides a ‘heightened level of protection’ because it ‘embodies a dual requirement: both the individual’s right of access to court and the need for Member States to ensure adequate protection of EU rights at the systemic level’. This second requirement is significant: it enables national courts ‘to take account of a wider range of factors, not restricted to whether an actual individual could realistically cross the threshold to the court room’. Absent this requirement, the door opens for Conservative orthodoxy, which tends to place procedural restrictions on substantive rights. That tendency is alive and well, as evidenced by the right-wing economic policy driving the introduction of employment tribunal fees, seminally found in the Beecroft Report. Without judicial vigilance, the long-term future after Brexit may increasingly be rights without remedies.
In the end, May’s heterodox commitment to workers’ rights reflects the Government’s response to a divided political mandate after Brexit: to promote free markets while appeasing calls for social entitlements. To superficially mediate these pressures, the Government can grant workers’ rights in law while allowing regulatory liberalism to triumph in fact. In effect, May’s promise to protect workers’ rights may well ring hollow. While we cannot expect EU law to provide the panacea for all our political quandaries, it remains a fuller legal expression of our Government’s promise to protect, and even enhance, workers’ rights after Brexit.
 See, e.g. Jon Henley, ‘Is the EU really dictating the shape of your bananas?’, The Guardian [Online], 11th May 2016: https://www.theguardian.com/politics/2016/may/11/boris-johnson-launches-the-vote-leave-battlebus-in-cornwall; James Slack, ‘Brussels diktats ‘costing families £4600 a year: Employment minister to say that homes and small businesses are being ‘throttled’ and a Brexit would boost the economy by millions’, Daily Mail [Online], 28th April 2016: http://www.dailymail.co.uk/news/article-3562573/Brussels-diktats-costing-families-4-600-year-Employment-minister-say-homes-small-businesses-throttled-Brexit-boost-economy-billions.html; Michael Gove, ‘EU referendum: Michael Gove explains why Britain should leave the EU’, The Telegraph [Online], 20th February 2016: http://www.telegraph.co.uk/news/newstopics/eureferendum/12166345/European-referendum-Michael-Gove-explains-why-Britain-should-leave-the-EU.html.
 Josh May, ‘Read in full: Theresa May’s Conservative conference speech on Brexit’, Politics Homes [Online], 2nd October 2016: https://www.politicshome.com/news/uk/political-parties/conservative-party/news/79517/read-full-theresa-mays-conservative.
 See Department for Exiting the European Union, ‘Legislating for the United Kingdom’s withdrawal from the European Union’, (2017): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604516/Great_repeal_bill_white_paper_accessible.pdf, 5.
 European Union (Withdrawal) Bill (EUWB): https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf, ss.3(1) and 4(1).
 Ibid, s. 6(3).
 See, e.g., R (on the application of Unison) v Lord Chancellor  EWCA Civ 935;  1 CMLR 25, Annex 2.
 See, e.g., Case C-83/14, CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia and others, CJEU (Grand Chamber), 16th July 2015.
 See Philip Syrpis, ‘The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive’, University of Bristol Law School Blog [Online], 6th April 2017: http://legalresearch.blogs.bris.ac.uk/2017/04/the-phoney-war-is-over-theresa-may-has-triggered-article-50-the-clock-is-ticking-but-clarity-and-legal-certainty-remain-elusive/#more-621.
 See Michael Ford, ‘The Great Repeal Bill, Workers’ Rights, Henry VIII and the ECJ’, University of Bristol Law School Blog [Online], 27th May 2016: http://legalresearch.blogs.bris.ac.uk/2017/04/the-great-repeal-bill-workers-rights-henry-viii-and-the-ecj/#more-616
 See EUWB, supra note 4, s.7(1).
 Gordon Rayner and Christopher Hope, ‘Cut the EU red tape choking Britain after Brexit to set the country free from the shackles of Brussels’, The Telegraph [Online], 28 March 2017: http://www.telegraph.co.uk/news/2017/03/27/cut-eu-red-tape-choking-britain-brexit-set-country-free-shackles/.
 Working Time Regulations (WTR) (London: The Stationary Office 1998), Reg.16.
 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31992L0085&from=en.
 Frances O’Grady, ‘Watch out, Brexiteers might be coming for your paid holidays’, The Guardian [Online], 18 December 2017: https://www.theguardian.com/commentisfree/2017/dec/18/brexiteers-paid-holidays-millions-britons-eu-working-time-directive-rights.
 Legislative and Regulatory Reform Act 2016 (LRRA) (London: The Stationary Office 2006), Part I, s. 1(2).
 Ibid, Part I, s.1(3).
 See Ford (n 9).
 See EUWB, supra note 4, s.6(5).
 Ibid, ss. 6(4)(a) and (6).
 Ibid, s.6(7)(a).
 See Ford (n 9).
 Ibid, s.6(2).
 European Union (Withdrawal) Bill, Explanatory Notes, Para. 105: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/en/18005en.pdf.
 British Gas Trading Limited v Lock and Secretary of State for Business, Innovation and Skills  EWCA Civ 983.
 See EUWB, supra note 4, s. 6(3)(a).
 Ibid, sched. 1, s. 3(1).
 R (Unison) v Lord Chancellor  UKSC 51, .
 See HM Treasury v Ahmed  UKSC 2; European Convention on Human Rights 1950, Art. 6.
 See Case C-268/06, IMPACT v. Minister for Agriculture and Food and Others, CJEU (Grand Chamber), 15th April 2008; Case C-432/05, Unibet (London) Ltd and Unibet (International) Ltd v. Justitiekanslern, CJEU (Grand Chamber), 13th March 2007.
 Charter of Fundamental Rights of the European Union 2000, Art. 47; Treaty on European Union, Art. 19.
 See Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs  UKSC 63; Case C-297/09, DEB v. Bundresrepublik Deutschland, CJEU (Second Chamber), 22nd December 2010.
 See Case C-14/83, Von Colson and Kamann v. Land-Nordrhein-Westfalen, CJEU, 10th April 1984.
 See Michael Ford, ‘The impact of Brexit on UK labour law’, 32(4) International Journal of Comparative Labour Law 273 (2016); Paul Bowen, ‘Does the renaissance of common law rights now mean that the Human Rights Act 1998 is now unnecessary?’, 21(4) European Human Rights Law Review 361 (2016).
 See Michael Ford, ‘The effect of Brexit on workers’ rights’, 27(3) Kings Law Journal 398 (2016), 413.
 Adrian Beecroft, Report on Employment Law, 24th October 2011: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31583/12-825-report-on-employment-law-beecroft.pdf.