Earlier this month the Government published its white paper “The United Kingdom’s exit from and new partnership with the European Union.” Basically I have read it so that you don’t have to! Although not all of the white paper is relevant from an employment law point of view, I have picked out some of the key points which I felt were particularly important or interesting for employers to be aware of.
In David Davis’ preface to the white paper he sets out 12 principles which will guide the Government in achieving Brexit. In the white paper each of these 12 points is then expanded – but mostly not in great detail, as the Government has already stated that it does not wish to give away its negotiating position for when the discussions with the EU take place.
In my view, the ones most pertinent to employers generally are:
- Providing certainty and clarity
Here the Government expands slightly upon its plan to enact a ‘Great Repeal Bill’ – which I think is a bit like an attempt to “copy and paste” any applicable EU law into UK law, so that the day after we leave the EU we don’t find our law is fundamentally different from what it was previously. They say “wherever practical and appropriate, the same rules and laws will apply.” Of course there will inevitably be some areas where it isn’t possible or desirable for the law to be the same, but identifying and dealing with all of those will be challenging.
- Taking control of our own laws
The Government states that it wishes to end the jurisdiction of the Court of Justice of the European Union (CJEU, also sometimes known as the European Court of Justice or ECJ). Some commentators doubt that this can be achieved in the way intended, but this is the Government’s stated aim.
Clearly while we are an EU member we are bound by the ECJ’s case law. However, what happens after we leave? If we have done the ‘copy and paste’ referred to above, does that mean we are going to be bound by any future decisions of the CJEU on those laws we have copied and pasted? If not, then will there be a transitional arrangement? Given that certainty is one of the stated aims, this is a key point which will need to be resolved.
- Strengthening the Union (i.e. the United Kingdom)
- Protecting our strong historic ties with Ireland and maintaining the Common Travel Area
These sections are about ensuring that the devolved administrations in Wales, Scotland and Northern Ireland are involved in delivering Brexit, and also that the close links and free travel between the UK and Ireland can be protected.
- Controlling immigration
Clearly the question of immigration was an important one for many voters in the referendum, and likewise this was a hot topic for discussion at our recent series of workshops.
Once we leave the EU we will no longer be part of the ‘free movement of people’ within the EU. Instead, the Government states that it plans to “create an immigration system that allows us to control numbers and encourage the brightest and the best to come to this country, as part of a stable and prosperous future with the EU and our European partners.”
There is no detail given at this stage on what this system would look like in practice, only that they are “considering very carefully the options open to us.”
- Securing rights for EU nationals in the UK and UK nationals in the EU
This has been one of the topics the media has been particularly interested in. According to the figures in the white paper, there are 1 million UK nationals living in the EU, and 2.8 million EU nationals are currently resident in the UK. The Government states in the white paper that resolving this issue is “one of the Government’s early priorities for the forthcoming negotiations” and that they wish to “reach a reciprocal deal with our European partners at the earliest opportunity.”
- Protecting workers’ rights
There was a significant error in the first version of the white paper, which suggested that UK workers benefit from 14 weeks’ annual leave! Fortunately that has now been corrected.
Essentially in this section the Government is saying that in the UK we already offer a great deal of rights which do not come from EU law and therefore those are not dependent on our membership of the EU. This is the point which I made at our recent ‘Hot Topics for 2017’ workshops.
Interestingly, the Government states that it is “committed to maintaining our status as a global leader on workers’ rights, and will make sure legal protection for workers keeps pace with the changing labour market.” I am not convinced that it is widely accepted that the UK is a global leader in workers’ rights. In terms of ‘keeping pace with the changing labour market’ I think this is likely to refer to things like the ‘gig economy’.
However, it is important to note of course that any commitments made by this Government do not bind future governments. Once we leave the EU our laws will be subject to amendment by Parliament, and therefore as the political landscape changes, it is possible that some existing employment laws could be repealed or amended. The feedback at our workshops was that quite a few people would like certain aspects of TUPE to be first on the list to be changed!
- Delivering a smooth, orderly exit from the EU
And last but definitely not least, many of the points above are tied into the final aim to ensure that the exit is not a “disruptive cliff-edge”. Article 50 gives a 2 year notice period for leaving the EU and the Government has said that it plans to trigger Article 50 by the end of next month. The 2 year notice period can only be extended by unanimous agreement of all the Member States.
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If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).