A Word from the Editor - November 2017

Alex Lock, DAC Beachcroft LLP
Wednesday, November 1, 2017

Last month I wrote about perceived deficiencies in the law-making process in the UK. This was, in part, a reflection of the criticisms that had been made concerning the introduction of employment tribunal fees, but also to reflect one of the key aims of ELA, namely ‘to promote the best practice of employment law’. As well as encompassing how employment law works in courts and tribunals, it also takes account of how new law is introduced. The considerable work of ELA’s legislative & policy committee in analysing and commenting on proposed legislative changes is illustrative of that aim.

Concerns about lawmaking are now being raised in relation to the Repeal Bill regarding the UK’s exit from the European Union and the transposing of EU law into UK law, in order to provide some continuity when the UK formally leaves. This was a point picked up by Charles Wynn-Evans in his excellent article last month.

The House of Lords Delegated Powers Committee has published its report on the proposed legislation and has not been shy in criticising both the form and substantive of the drafting. One of the most controversial areas of the Bill is in relation to the so-called ‘Henry VIII powers’, which would allow ministers to change law – with the consequent impact on individual’s rights and responsibilities – without the scrutiny or approval of Parliament. Such powers were at the heart of the Article 50 case that ended up being heard in the Supreme Court. The Government argued that it had the power to give notice to leave the EU without reference to Parliament. The Supreme Court disagreed and ruled that where the established rights of individuals would be detrimentally affected, other than in exceptional circumstances, that could only be done with the express consent of Parliament.

When the Government published its white paper, it stated the Repeal Bill would not ‘aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one’. It went on to say that that the Bill ‘will provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU’.

The Bill itself has gone much further: it ‘allows ministers by regulations to make such provision as they consider appropriate to prevent, remedy or mitigate: (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from withdrawal of the UK from the EU’.

The committee has condemned what it regards as giving ‘loosely-drawn powers based on the subjective judgment of the minister’.

At present, a number of employment rights arise from the UK’s membership of the EU: TUPE; collective consultation on redundancies; working time matters, including paid annual leave; and various equality and maternity rights, to name but a few. All the while the UK remains a member of the EU, those rights have a strong guarantee.

While most people accept that the result of the referendum and the subsequent issuing of notice to leave under Article 50 means that the UK will be leaving the EU, what many may be surprised about is how fragile those rights could become. Under the proposed Repeal Bill, many of those rights could be put at risk without proper scrutiny by Parliament, particularly for those who can rely upon the direct effect of EU law.

The point is that good lawmaking requires proper judicial review challenge. No one has all the answers, which is why we have a process of consultation and debate. ‘Taking back control’ was meant to mean back to Parliament, rather than ministers, and any dilution of that should be by reference to necessity rather than appropriateness, the latter rendering any scrutiny nigh on impossible.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.