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Brexit Article 50 is Triggered – Update

By - - Employment Law

Theresa May, the UK Prime Minister, triggers Article 50 on March 29, 2017.

The UK will leave the EU on March 29, 2019, come what may – although departure can in theory be delayed in the unlikely event that the UK and all remaining EU Members agree to delay it.

The Brexit negotiations

The Brexit negotiations can now, at last, begin.  There are 2 tracks.  The first covers the terms of the actual Brexit.  This will be much like a divorce settlement, although somewhat more complicated (few divorces involve 28 noisy parties).  It will cover a vast array of issues including, who pays, how much and to whom, for how long and on what terms.

The Brexit divorce negotiations must be concluded in 2 years (subject to the remote possibility of all 28 parties agreeing to extend) including ratification by the parliaments of all the remaining Member States.  If it is not, the UK drops out of the EU anyway but with no agreed Brexit terms in place. Consequences unknown.

Then there are the negotiations of the future trading arrangements, beyond 2019.  What sort of trading relationship will the UK have with the EU?  The UK wants to negotiate this in parallel with the Brexit negotiations.  The European Commission and some Member States think these talks should wait until the Brexit talks are concluded. The twin track issue is, as yet, unresolved.  However,  few think the trade talks can be concluded in 2 years, in any event.

Immediate Effect of Triggering Article 50

The good news, in terms of UK labour and compliance law, is that for now at least, nothing changes. You may continue as before.

The Great Repeal Bill

Given the enormous amount of EU law that has direct effect in UK law, the government proposes to pass the Great Repeal Act which, counter intuitively, will incorporate into UK law all current EU law.  Then, over time, the UK government can make such changes to the law as Parliament approves.

Again, this means no immediate change to any UK labour or compliance law.

Areas of labour and compliance law that might expect to get early UK government attention, post Brexit, include:

  • holiday entitlement and pay,
  • transfer of undertakings rules (TUPE),
  • data protection.

The European Court of Justice (ECJ)

On Brexit Day (March 29, 2019),  it is expected that the ECJ will lose its jurisdiction over UK law.  However, to avoid immediate legal chaos, the Great Repeal Act will bring into UK law all ECJ judgments made to date which affect the UK.  Future ECJ judgments will, of course, not apply to the UK.

EU citizens’ rights in the UK

Many had hoped that, by now, the status of EU citizens living and working in the UK and would have been resolved by the UK government unilaterally confirming their continuing right to remain and work in the UK.  The government has, instead, decided to treat this issue as part of the Brexit negotiation and so the status of those EU citizens and workers in the UK, post March 2019, remains unresolved for now, as does the status of UK citizens working in the EU.  However, the strong expectation is that both groups will be allowed to remain and work.

Data Protection

Notwithstanding Brexit, the EU General Data Protection Regulation will come into effect in the UK (as it will across the EU) in May, 2018 as, at that date, the UK will still be a member of the EU.  For more information click here.
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