Whither EU and UK Social Policy Post-Brexit?
In an article initially drafted a year ago and now published in a themed section of Social Policy and Society, we attempt to assess the past and future development of EU and UK social policy in the context of Brexit. In concluding the article, we argue that it is difficult to predict to what extent social legislation implemented since the UK joined the EEC in 1973, and became party to the Commission’s work and to decisions taken by the European Council, would be repealed or amended following Brexit. Nor was it possible when Article 50 was triggered to anticipate whether the remaining EU27 member states would seek to develop further binding social legislation in the knowledge that it could not be blocked by the UK.
Understandably, the contributors to the Brexit special issue of the Journal of Social Policy and to the SP&S themed section focus on the potential risks and challenges facing UK social policy if the UK is no longer governed by EU law and the rulings of the Court of Justice of the European Union (CJEU). Indeed, many commentators fear the loss of hard-earned social advances particularly in the area of gender and employment rights. Less attention is paid in these publications to the chances of Brexit resulting in a fairer and more just social policy for UK citizens once its sovereignty is restored and benefit tourism is removed, as claimed during the referendum campaign by the leave camp.
In the 1957 Treaty establishing the European Economic Community (EEC), social policy had a limited, albeit specific remit. Article 118 encouraged the then six member states to cooperate closely in the social field with a view to preventing distortion of the rules of competition and avoiding obstacles to the free movement of labour. From the outset, the social dimension was subordinated to economic policy. Over the years, despite their internal divisions, governments of right and left across the EU have not, however, been prepared to relinquish sovereignty over their national social protection system.
As an EU member state and an active participant in EU institutions, the UK played an influential role in shaping EU social policy. Its presence at the negotiating table did not, however, prevent the progressive implementation of a significant body of primary and secondary legislation coordinating the social security rights of mobile workers, a development facilitated by the case law built up by the Court of Justice of the European Union (CJEU), and tracked by the FreSsco Network.
How Brexit will impact on UK social policy depends to a large extent on the relationship the UK eventually negotiates with the other 27 member states. From an early stage, the British government was adamant that the so-called Free Movement Directive, 2004/38/EC, would no longer apply, stating in its 2017 White Paper on Brexit that ‘the migration of EU nationals will be subject to UK law’. Theresa May reiterated this position in her Mansion House Speech, but without specifying how the social security rights of future EU migrants might be affected. We are already seeing how difficult it is for the UK to untangle those aspects of social legislation that it would want to repeal in the Withdrawal Bill. If, as seems increasingly likely, the UK continues to be affiliated to certain EU institutions, agencies and programmes on a bespoke partnership basis, the Prime Minister acknowledges that the UK will expect to retain existing regulatory standards and may, in the future, choose to adopt an ‘identical law’ to that of the CJEU.
As if to endorse the view that Brexit would free up European social policy, on 1 March 2017 in a White Paper on the Future of Europe, Jean-Claude Juncker had signalled his intention to promote a more pro-active approach to EU social policy in an attempt to counter the disaffection and scepticism of the European population. In November 2017, at the European Commission’s first-ever European Social Summit in Stockholm, Juncker formally proclaimed a European Pillar of Social Rights. The aim was to ‘sustain upward convergence between EU Member States’ with ‘social protection as a productive factor’, echoing a key theme in the Commission’s 1994 White Paper on European Social Policy. Recognising that not all member states would want, or be in a position, to observe the same social standards, Juncker proposed several degrees of social regulation, notably to accommodate euro and non-eurozone member states. As a non-EU member state, with its commitment to maintaining high standards, it is conceivable that the UK could choose the degree of social regulation best suited to its own requirements.
See also by the same author: The Social Dimension in EU and UK Policy Development: Shaping the Post-Brexit Legacy.