A recent consultation would allow the lower courts to influence how much the UK departs from EU-based law after Brexit, which could lead to confusion and watering down of employment rights such as anti-discrimination laws, says lawyer Louise Taft.
The Government has recently consulted about allowing the High Court and Court of Appeal to depart from retained EU law where they consider that it is right to do so. I co-chaired the Employment Lawyers Association response to that consultation, and I am seriously concerned that this change, made in the guise of implementing Brexit, will have far-reaching, unintended consequences.
Retained EU law is the snapshot of EU law that will be taken at the end of the transition period on 31 December. It includes not only EU Directives but the way those Directives have been interpreted by UK and European courts.
After Brexit, Parliament will be able to legislate to change retained EU law if it sees fit. The original Withdrawal Agreement Bill provided that when the courts interpret the law, only the Supreme Court would be able to depart from retained EU law using its existing test for departing from its own decisions. A late change in the 2019 Bill authorised the making of Regulations to extend this power to lower courts. Government has now consulted on a proposal to do so, but only to the Court of Appeal, and possibly the High Court.
Legal doctrine of precedent provides that courts must follow the prior decisions of superior courts. The Supreme Court is the highest court, so may depart from its own decisions in particular circumstances. The Court of Appeal must follow the Supreme Court, and lower courts and tribunals must in turn follow their decisions. In employment law, the Employment Appeal Tribunal must follow the Court of Appeal, and Employment Tribunals must follow the Employment Appeal Tribunal.
Allowing lower courts to depart from retained EU law could threaten this principle as it will be difficult to separate the EU law from the UK legislation implementing it, i.e. where EU and UK law in a particular court decision begins and ends. It is also likely to lead to uncertainty and increased litigation, as parties whose cases would be helped by the court departing from EU law would be more likely to take their case all the way to court rather than settle with their opponent. Test cases could be brought on behalf of groups of employees or large employers, which could take several years to reach a settled conclusion.
All the while, employees, employers and their lawyers cannot be certain about how the law will be interpreted and what that means for them.
I do not want to see any of the laws relating to equal pay, anti-discrimination, holiday pay or TUPE rights watered down. Many of those laws protect working mums, particularly when they are pregnant or taking maternity leave, but also for so long as they have caring responsibilities. But if those laws are to change after Brexit, I believe that it is Parliament’s
role to decide what comes next, not the courts.