Exit

Now that the UK have voted to leave the European Union, attention turns to how the country will withdraw and how a Brexit will work.

At present, those leading the ‘leave’ campaign have not put forward a clear blueprint or model as to how the United Kingdom would govern its trading relations outside of the EU. In contrast to the 2014 Scottish Independence referendum, where the then Scottish Government published a prospectus detailing how an independent Scotland would exist and function, Brexit advocators do not currently have detailed, pragmatic guidelines on how the UK would operate outside of the EU.

That being said, this lack of information hasn’t prevented a significant number of UK citizens from believing that an exit from the EU is the best option for the UK.

So, how would it work?

Well, there would be significant practical difficulties in disentangling the UK from the EU legally – but, under Article 50 provisions in the Treaty of Lisbon, the UK would be given a period of two years to negotiate its exact terms of departure.

Depending on the result of these negotiations, some, or all, of the legislation that arose out of EU directives could be reviewed or repealed – though this would depend on the nature of any future relationship between the EU and the UK.

Disentangling EU-derived requirements from non-EU-derived requirements in UK law would prove problematic, as case law has drawn on the domestic court’s interpretation of EU directives and ECJ ruling for more than 20 years.

In the employment law field particularly, a significant amount of UK legislation has derived from the EU, strengthening individual and collective workers’ rights in areas such as working time, annual holidays, family friendly policies, anti-discrimination legislation, collective redundancy, TUPE and employment protection.

All of this EU-derived law is firmly embedded in UK law, and would require significant new legislation to unpick and repeal it (not to mention the hostility that any attempt from a future UK Government to diminish or reduce these benefits would likely be met with).

In many ways, what happens to UK law would depend upon how the Government negotiates to extricate itself from the EU – whether the exit negotiation process is one of a ‘demerger’, or regulated break-up which is rational in nature, or more of a ‘divorce’, which is largely emotional.

Whether any UK exit is by way of a ‘demerger’ or ‘divorce’ would be a matter for the negotiating parties – but we can safely assume that the EU would likely adopt a very tough negotiating stance, on the basis that it would serve as a warning to any other current EU members who may be thinking of heading for the exit door.

A tough negotiating stance from the EU could well prompt a tough retaliation from the UK – meaning that the exit could proceed along the ‘divorce’ route, at which point wholesale repeal of all EU-derived laws could not be ruled out.

If a rational approach to exit is adopted by all parties involved, then it is more than likely that, following an exit from the EU, Parliament would simply keep all current laws in place, before beginning to address particular laws individually over time, either amending or repealing them as and when required. However, any attempt to ‘undo’ or remove strengthened protection for workers and individuals that is in place as a result of EU law, would not be a popular move.

If Britain votes to leave the EU, there will undoubtedly be significant untangling to do. The questions of how, to what extent and, perhaps most importantly, why the UK would distance itself from EU laws, however, currently remain unanswered.

By Richard Thomas, employment partner at Capital Law, originally posted here.