Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by the BMA (British Medical Association) (REULB80)

Call for written evidence: Retained EU Law (Revocation and Reform) Bill 2022

The BMA (British Medical Association) is a professional association and trade union representing

and negotiating on behalf of all doctors and medical students in the UK. It is a leading voice

advocating for outstanding health care and a healthy population.

We are writing regarding the UK Government’s proposals contained in the Retained UK Law (Revocation and Reform) Bill as there are an increasing number of concerns within the medical profession about its potential implications to the NHS, its workforce, and the nation’s health.

The UK’s membership of the EU has had a significant impact on the development of employment rights for doctors. Legislation such at the EWTD (European Working Time Directive), the right to equal pay between men and women in Article 157 of the EU Treaty, and other EU laws around equality have strengthened safety and equality provisions for doctors in the UK. This improves patient care, as well as working towards creating a better work environment which is more likely to retain doctors – the effect of which is incredibly important given the current pressures on the NHS across the UK.

The EWTD and the measures which it has transposed into the UK WTR (Working Time Regulations) – namely the limit of a 48-hour average working week, rest breaks and statutory paid leave – form key health and safety legislation. Alongside ECJ (European Court of Justice) judgements (the SiMAP and Jaeger rulings which enshrined the principle of time spent on-call at the workplace being regarded as work, and other rulings such as those ensuring the correct calculation of holiday pay), this has reduced fatigue amongst doctors and improved the safety of both patients and doctors in the UK. Subsequently, we request the UK should not diverge from the EWTD as these regulations are critical in protecting doctors from the dangers of overwork and patients from the impact of overtired doctors.

EU law underpins the Equality Act 2010, including rights to equal treatment for part-time workers, health and safety protections for pregnant workers and rights to maternity leave, emergency time off for dependents, and parental leave. The BMA is concerned that these measures might become more vulnerable to amendment, narrower interpretation, and weaker enforcement under the proposed Bill. This includes regulations protecting the employment status of fixed term and agency workers who may be more likely to be women or those with caring responsibilities.

UK workers have, up to now, been able to rely directly on the right to equal pay between men and women in Article 157 of the EU Treaty. Successful cases decided by the Court of Justice of the European Union (CJEU) under Article 157 have led to changes in UK equal pay law (e.g. including the right to equal pay for work of equal value, occupational pensions within the definition of pay, and increasing the back pay compensation for equal pay claims). The proposed Bill suggests that further progression along these lines is less likely to be enacted or enforced.

The proposed ‘sunset clause, which will remove the special status and EU-derived features of retained EU law at the end of 2023, poses a significant risk for a cliff-edge’ scenario creating a possible significant legal uncertainty. We note the Government’s Retained EU law dashboard [1] , but it appears to be not exhaustive enough regarding legislation that hasn’t been repealed or changed. To ensure transparency, the Government should publish a clear list of EU legislation to be revoked or amended. We are also concerned with the scheduled timelines for the process, and do not believe this is practical or feasible, and would strongly suggest Government reconsider the time given and apply an extension into 2026.

The BMA is concerned that the Bill gives Government widespread, executive powers to rewrite these laws through Statutory Instruments requiring little parliamentary scrutiny and with no mandate from voters. Further clarifications on the impact on devolution are also needed.

 

The BMA would like to reiterate that the UK must follow a legal requirement to maintain levels of protection post-transition and avoid significant divergences in the future, as specified by the EU-UK Trade and Cooperation Agreement (TCA) which requires both parties to not weaken or reduce their levels of social, labour and environmental protection below those in place at the end of 2020 (non-regression).

The BMA would not oppose efforts to revise and raise standards, but this would require a more targeted approach that would lead to improvement rather than deregulation as the current pathway of the Bill suggests. In addition, the numerous uncertainties around the Bill risk the UK becoming an unattractive place for International Medical Graduates to come and practice at a time when the NHS is already in the midst of a workforce crisis.

November 2022