AUTHOR: Hailey Murphy (PhD student, York University, Canada)

What is at stake when a country decides to trade in its membership to one of the world’s most powerful supranational clubs, and what will this separation look like for both parties? Can the UK and the EU pull off an amicable divorce or will their squabbles hold them up in endless rounds of mediation? The historic EU Referendum in the United Kingdom has spurred many questions regarding European integration and the future of the EU’s relationship with one of its most influential member states. Following a polarizing political battle, citizens of the UK voted to leave the EU by a margin of 3.8%, with 51.9% of citizens voting to leave the EU and 48.1% voting to remain. The result of the referendum ushers in a new era for the EU as the UK is now the first member to formally request an exit from the supranational body. The prospect of other nations jumping on the anti-EU bandwagon is a real possibility that will fundamentally change the future of the EU. On March 29, 2017 British Prime Minister Teresa May wrote to the President of the European Council, Donald Tusk, officially triggering Article 50 of the Lisbon Treaty and thus starting a two-year process for the UK’s exit from the EU.

Alongside the official negotiations associated with this endeavor comes a national propaganda campaign to further promote distrust in EU institutions and their influence. This political performance will aid in easing the citizens of the UK into the realities of political uncertainty ahead. An exit from the EU means more than a simple erasure of the UK from EU documents; it necessitates a complete re-working of UK legislation without the guidance of EU directives. The course of abiding by the guidelines of Article 50, coupled with the re-crafting of an entire body of legislation, puts the UK and its citizens in a rather precarious situation for the foreseeable future.

Article 50 outlines the conditions for any member state to leave the EU. Once implemented, it gives the leaving country two years to negotiate an exit deal, a timeline which can only be extended with the unanimous support of the remaining 27 EU member states. As such, the UK will enter into a complex and long process of negotiations with the EU before the UK is officially independent of the EU. Any agreement faces several hoops and hurdles as it must be approved by a majority of EU member states and faces the possibility of veto by the European Parliament before it can be ratified. Notwithstanding these possible barriers, the UK has until March 29, 2019 to develop a deal which satisfies domestic and EU interests and removes the UK from all EU treaties that govern member states.

Both the UK and the EU have established negotiating parties entrusted with coming to a fair deal between the two bodies. In the UK, the Department for Exiting the European Union is headed by Secretary of State David Davis who gave a statement in Parliament outlining the details of a White Paper on the Great Repeal Bill, a document meant to prepare the UK for a ‘smooth and orderly exit’ from the EU. The White Paper consists of three principle components: it will repeal the European Communities Act; convert EU law into UK law; and create the necessary powers to modify EU law found no longer appropriate for domestic interests. These principles will be the key targets for a new deal. The Taskforce on Article 50 negotiations with the UK is headed by Chief Negotiator Michel Barnier and is meant to coordinate ‘the European Commission's work on all strategic, operational, legal and financial issues related to negotiations with the United Kingdom’. In early May 2017, the European Commission recommended draft negotiating directives in order to see the process move forward.

While the Department for Exiting the EU aims to achieve a clean separation, many questions remain regarding the status of current EU law within the UK. The promise to transform EU law into UK law is seemingly undercut by the simultaneous assertion that legislation not congruent with national interests will be modified or eliminated. The Great Repeal Bill affords the government of the UK great legislative power on their exit from the EU. According to a news release from the UK government, ‘The European Communities Act will be repealed on the day we leave the EU – meaning that the authority of EU law in the UK will end. We will convert the body of existing EU law into domestic law and then Parliament will be free to amend, repeal and improve any law it chooses.’ With a general election on the way, it is very uncertain which types of changes are coming in the future. This is troubling for traditionally marginalized groups who clearly benefit from more progressive legislation brought into the UK via EU Directives.

Considering the UK’s past resistance to EU Directives, there is cause for worry regarding prospective legislative changes ahead. This is particularly true in regards to women’s and workers’ rights and is evidenced by the Pregnant Workers Directive (1992). The UK government maintained an oppositional position during the negotiations of the Pregnant Worker Directive and the now shelved Proposal for an Amendment Directive. This is closely tied to a strong trend in British policy toward de-regulation. In its initial proposal, the Pregnant Workers Directive was posed under Article 119 (Equality), yet was eventually ratified under Article 118a (Health and Safety). The switch was a strategic move taken in order to avoid the requirement for unanimity in the Council as unlike equality measures, health and safety provisions are decided by qualified majority voting. Opposition from strong member states such as the UK forced a change in focus and subsequent revision of the legislation. Without the force of the EU, there is no legal guarantee that rights derived from the directive will be protected by an independent UK.

Aside from the Pregnant Workers Directive, several protections granted to UK citizens exist as a result of EU Directives such as the Equal Treatment Directive, Race Equality Directive and the Community Charter of the Fundamental Social Rights of Workers are only a few examples of vital legal assurances for vulnerable UK citizens. The European Commission has shown a commitment to protecting the rights of EU citizens both in the UK and within Europe in their Article 50 fact sheet, however it remains unclear what its intentions are for UK citizens residing outside of the EU. The first round of formal negotiations for each party have yet to begin, thus time will only tell what is in store for UK citizens and UK/EU relations as a whole.

With so many questions left unanswered, one can only hope that a de-regulatory push is not made by whoever takes power in the upcoming general election and substantial consideration is granted to the benefits gained via EU Directives in the United Kingdom. Everything considered, the time ahead is shaping up to be a very complex and possibly messy separation for the two parties. There is a lot at stake for the citizens affected by the political spectacle of Brexit, much more than a mere re-wording of a couple pieces of legislation or change of passport design. The legal changes the British Parliament has the power to make will deeply influence the lives of its people.