Brexit and the Failure of Pre-Emptive Reconciliation: A Study of the General Data Protection Regulation

As Britain faces up to a post European Union future, commentators and politicians compete and sometimes struggle to explain the result of the referendum. Against a backdrop of warnings of the detrimental effect of an exit from the IMF and World Bank, opinion polls too close to call and initial indicative results that suggested a victory for those campaigning to remain in the EU, UK voters chose to leave by a majority of 3.8%. Although a prominent issue throughout the build up to the referendum and in subsequent analyses of results was immigration, many voters and firms also expressed a desire to be free from what they perceived to be the overly bureaucratic machinery of the EU. In this paper we will investigate one basis for these expressions of ill feeling toward European Union legislation: the process of changing legal forms of EU legislation from subsidiarity and the creation of Directives, toward Regulations. One recent and very prominent example of a change from Directive to Regulation can be seen in the development of the General Data Protection Regulation (GDPR). This legislation replaces the Data Protection Directive of 1995. In studying the move from Directive to Regulation, we will argue that many of the tensions in EU policy making can be brought to the surface. The precise composition of the legislative form requires study to understand how these tensions emerge but are never fully resolved. Our suggestion in this paper is that Regulations involve what we will term pre-emptive reconciliation: on-going, lengthy and costly negotiations which draw together distinct viewpoints, aims, interests and concerns generating tensions that are built into the legislative form but never fully reconciled or resolved.