A good deal of consensus appears to have broken out across the various political divides we have in the UK as to the importance of employment law. The New Year brought a rash of agreement on the need, not only to protect employment rights, but to enhance them. Employment lawyers across the land no doubt raised a glass to toast this outbreak of what many of us would regard as being a good thing. On closer inspection, however, I am not sure that this collective cheer for employment law bears much detailed examination.

As we know, in 2016, the UK voted to leave the European Union. The question on the ballot paper did not include any specifics, only whether we should remain a member of or leave the EU. By a small majority the electorate voted to leave.

This was interpreted by leavers and newly converted former remainers as being a vote to ‘take back control’ of our money, borders and laws. It is the last of these that is of most interest to us. What taking back control of our borders has been suggested to mean is that (a) the UK would not have to implement EU legislation; and (b) would not be subject to the jurisdiction of the Court of Justice of the European Union.

As it has become apparent that the Government is in difficulties in getting Parliament to approve its withdrawal agreement, it has started to look for allies in new and unusual places. As part of this, it has sought to persuade opposition MPs and trade unionists of its intentions in relation to employment protections under EU law. It has stated, on more than one occasion, that it intends to, not only retain existing protections, but to enhance workers’ rights.

Some might find it strange to hear of the need to respect the referendum result by making sure that the UK is not subject to EU law, including employment protections, and is not under the jurisdiction of the CJEU, including its decisions on employment protections. Yet, at the same time, we should voice our support for TUPE, collective consultation and the Working Time Directive, together with decisions on holiday pay and working hours, to name but a few.

Part of the difficulty is that there is a lack of clarity as to what politicians mean when they refer to ‘workers’ rights’ or ‘employment protection’, or, indeed, European law. If they cannot be certain as to what they are referring to, let alone what they would like to retain or ditch, the discussion becomes superficial and difficult for the public to engage with.

As with so much else in Brexit – and, arguably, politics generally – there is a lack of clarity as to what is being referred to and what the choices really are. In the same way that being in a permanent customs union, for example, throws up advantages of frictionless trade, but disadvantages in relation to independent trade policies, taking a dynamic approach to alignment with EU employment protections will have both advantages and disadvantages, almost regardless of whether you are (or were) a leaver or remainer. That is why clarity and straightforwardness is so important in this debate.

Alex Lock, DAC Beachcroft LLP