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Don’t Let The Sun Go Down On Me?

Sunday, Dec-04, 2022

Don't Let The Sun Go Down On Me?

This may be an odd title, but it references the “sunset” date being the end of 2023 as set out in The Retained EU Law Bill. The Bill potentially means the removal of certain key pieces of EU-derived law currently retained following Brexit. It also confers very broad powers on the Government to change EU-derived legislation with only limited parliamentary scrutiny.

The sunset provision means much EU-derived legislation will be wiped from the statute books unless steps are taken to retain it prior to the end of December 2023, possibly creating another Brexit cliff edge. This is a big deal for individuals and business.

It is also an interesting test of Brexit ideology v pragmatism and commerciality. At this time there appears to be little appetite for appropriate consultation as to what should and should not be retained.

European related legislation has been part of our legal landscape for a number of years; much of our trade is with our European neighbours. In many cases there will be acceptance by business that retaining some EU laws does not tie us up in red tape and restrict progress and that generally we will be happy to have some regulatory alignment with European countries if this facilitates our trade.

As regards employment law, this legal bonfire could include legislation in relation to working time, holiday pay, agency and part-time workers, TUPE and works councils. It will also affect company law, environmental law and laws in relation to products standards.

The Bill also gives domestic legislation priority over EU-derived measures in the event of a conflict. This could create uncertainty in the future with increased argument over interpretation. There will also be new fast-track powers to keep retained law and to revoke regulations, replacing them or not.

It may be that certain legislation is just allowed to expire, such as the Commercial Agents’ legislation and legislation relating to Equal pay. We do have our own equal pay legislation which would not be affected.

We have lived with EU-derived legislation for a good number of years. It doesn’t mean to say it cannot be improved and adapted to our post-Brexit economy but time flies and, in legislative terms, the end of 2023 is a very tight deadline to deal with up to 2,400 pieces of legislation.

One option might be to re-issue legislation in a revised form. However, there is a lot to deal with and this may not be achievable by the end of next year. It would also be possible to extend the December 2023 deadline. This is something being considered by the new Government in the current economic climate with attention being focused on other problems but this may not be acceptable to the hard-line Brexiteers.

The Government is still struggling with internal arguments surrounding ideology. Europe is very much at the forefront of these arguments and there could be significant disagreements over which legislation is retained. It is also acknowledged that significant numbers of civil servants would be diverted from other tasks if the 2023 date is to be achieved. Realism and clarity will be needed to avoid another Brexit cliff edge.

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