Civil Law

Things have surely come to a pretty pass when it is front page news twice in two weeks that the Government has decided not to press on with doing something daft.  First, the abandonment of smart motorways and last week, reports that the Government has backed away from its original proposal to wipe all EU-sourced regulations from the statute book at the end of this year. More predictable is the number of MPs who are nonetheless recorded as being variously aghast, outraged, appalled *[continue until convinced or all similar hyperbole is exhausted, whichever comes first]* by this “betrayal” of the Brexit vote.  

Come on, get a grip. There are thousands of these regulations, going far beyond the employment arena, and every single one of them will require a detailed review of pros and cons to determine whether it should be either resurrected but now UK-branded, lightly tweaked to remove or clarify anomalies or misinterpretations, or (the least likely of all) simply deleted.  Only the most unreconstructed EU-phobe would consider that substantial parts of EU-driven employment law in the UK require to be removed or materially revised just because the opportunity now exists.  You can’t simply scrub TUPE or the Working Time Regulations or collective bargaining rights or innumerable health and safety rules without replacing them with something, and let us be honest with ourselves  – any attempt to re-write TUPE is bound to lead to something which looks very much like TUPE, simply because there are no realistic alternatives. On that front, it is noticeable (indeed, positively striking) that among all the sound and fury from ardent Brexiteers around the Government’s reconsidering its position on this, there have been no formal proposals from objectors as to how any of their Made in Britain replacements would actually differ.  That is even just differ in principle, let alone in the degree of detail required to make those principles into better or clearer law than went before.  That would risk a bonfire not only of red tape but also of long-standing and hard-won fundamental rights and freedoms required for both workers and employers. [Actually, I tell a lie – there was very brief discussion a couple of years ago of some unspecific changes which might be made to the WTR, but the public reaction to the Minister put up to talk about them was so excoriatingly hostile and sceptical of the Government’s intentions that nothing more has been heard of it since].

There may be a case for some small changes to UK employment law here and there (see our post on that here ), but in the real world, far fewer than the fundamentalist wing of the Brexit movement in Parliament appears to believe.  Since the post above, what other bits of UK employment law have surfaced as possible candidates for the new Union Jack label?  None of substance, bluntly, unless the drivers of a wholesale legislative tippexing on 31 December are prepared for the most colossal industrial relations backlash at home and even greater difficulties than currently in trading with the EU bloc.  That body has made it clear that material moves away from the basic worker protections which it has slowly and painfully enacted and implemented over many decades will be very poorly received from a prospective trading partner.

If changes to UK employment law are to be proposed, therefore, there needs to be thorough, considered and informed debate and broad industrial consensus around them – aside possibly from nuclear safety, employment law is among the very least sensible areas in which to allow Brexit rhetoric and hoped-for political gain to trump careful consideration of the realities of law-making. There will need to be an explanation of what the proposed changes mean in practice, consultation and proper parliamentary scrutiny. There was never any real possibility that the Government could have done all it promised by the end of the year, or at least not effectively, so ignore all the posturing of the more exercised MPs – this retreat from certain disaster, however grudging, is good news for the stability of the UK employment landscape.

Do you have a pet hate in EU-derived employment law?  Really? What measure would you have pushed towards the guillotine in December?  The folly of making changes of such a scale by the end of the year may have been recognised, as an issue of Parliamentary time and pragmatism at least, but the political pressure for a ritual sacrifice of some of it in due course is not going to go away altogether, so we would welcome your thoughts on the changes which should be on the Government’s agenda here.

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