Government abandons ‘Sunset Clause’ in Retained EU Law Bill

The government has announced on 10 May 2023, that it will be abandoning the ‘sunset clause’, that was included within The Retained EU Law (Revocation and Reform Bill) published in September 2022 (the Bill).

The consequence of the proposed ‘sunset clause’ within the Bill was that EU law was to be automatically repealed (including UK statutory instruments which were introduced to comply with EU law) so that it expired on 31 December 2023, unless specific legislation was introduced to retain it. This date marked three years from the end of the ‘transition period’ on 31 December 2020, following the UK’s exit from the European Union.

Is EU law still binding in the UK?

However, following the Government’s announcement on 10 May, the position is being reversed, so that EU law will remain binding in the UK unless it is expressly repealed. Shortly following its announcement, the Government indicated which retained EU laws the UK intends to revoke with effect from 31 December 2023. There are approximately 600 laws that the Government has indicated they will be repealing so far, that impact upon on a variety of different sectors, although this list is subject to change whilst the Bill passes through Parliament.

The changes relevant to employment law, being the EU legislation that the Government intends to revoke, are as follows:

• Community Drivers Hours and Working Time (Road Tankers) (Temporary Exemption) (Amendment) Regulations 2006 – these regulations relate to the supervision and regulation of working conditions of individuals engaged in road transport activities
• The Posted Workers (Enforcement of Employment Rights) Regulations 2016 – these regulations concern ‘posted workers’, who are employees sent by their employers to carry out a service in another EU Member State on a temporary basis
• The Posted Workers (Agency Workers) Regulations 2020.

The Government has also released a list of the areas of employment law that it intends to preserve. The list includes:

• Regulations prohibiting less favourable treatment of part-time workers
• Maternity and parental leave regulations
• Parts of the Working Time/ TUPE Regulations.

The Bill, and the ‘sunset clause’ in particular, had been the subject of much debate. The current Business and Trade Secretary, Kemi Badenoch, acknowledged that there was a risk of legal uncertainty posed by the sun-setting instruments made under EU law. Many businesses were concerned about the uncertainty of the future, especially in light of the current economic climate. It was also argued that there was not enough time to review all EU provisions before they were due to be revoked at the end of 2023, with concerns that important legislation could be revoked unintentionally due to the tight time frames in place for Ministers to review legislation. It is hoped that the removal of the ‘sunset clause’ will provide businesses and individuals with some reassurance moving forward.

The amended Retained EU Law (Revocation and Reform Bill) is now before the House of Lords, and the report stage began on 15 May. In the meantime, businesses should review the current list that has been compiled of EU legislation that is expected to be revoked on 31 December 2020 to consider the impact, and start to begin any necessary adjustments if required.