The Brexit vote precipitated something of an existential crisis among EU law academics. But we think the reports of the death of EU law as an academic subject in the UK are exaggerated. Indeed, we would go further: never before has learning about, and an appreciation of, the operation of EU law been so essential to understanding the (legal) position the UK finds itself in, the transitional arrangements that might apply, and then any future EU-UK deal. Specifically, there are five reasons why we think a knowledge of EU law is essential and will be in the future.
First, the UK is still in the EU and in all likelihood will be until 2019. Transitional arrangements (known in the jargon as implementation arrangements) during which time much of EU law will continue to apply may last for at least three years beyond that.
Second, consider the (misnamed) Great Repeal Bill (GRB). It is not in fact repealing very much. Rather, it is expanding UK law and incorporating unincorporated EU law into UK law. We know that directives have been implemented but the GRB will also incorporate regulations and decisions. This needs an understanding of the different types of rules under EU law, their relationship with national law and EU canons of interpretation.
The GRB will also incorporate directly effective treaty provisions (more terminology which needs an explanation) and will allow reference to the relevant ‘legal bases’ (ie powers on which regulations and directives are based) by UK courts when interpreting UK law (more explanations as to the terms). The GRB will preserve the supremacy of EU pre-Brexit rules over conflicting UK pre-Brexit rules (more explanation needed as to terms). It also gives pre-Brexit decisions of the Court of Justice the same hierarchical status as those of the UK Supreme Court. This means that students need to have an understanding of these cases, how they got to the Court of Justice and how the court reached its decision. And while the Charter of Fundamental Rights is dead for the UK, the ‘underlying principles’ will live on. More explanation is required - all of which requires knowledge of EU law.
Third, the EU will continue to be the UK’s largest trading partner. Many of our students will work in UK law firms advising on UK and EU law. Some will work in law firms based in EU states. They will need to know what EU law says and does. Some EU law - especially EU competition law and state aids - has extra-territorial effect. Again, knowledge and understanding of EU law is essential.
Fourth, any future EU-UK trade deal will be based on, as a minimum, the European Free Trade Association (EFTA) convention, more ambitiously it will adapt the Canadian Free Trade Agreement. These use terminology which can also be found in the EU Treaties. An understanding of this terminology and the legal issues surrounding the concepts under EU law will provide a window on these new trading arrangements.
Finally, the GRB White Paper talks possibly for the first time of the UK’s own single market, comprising England, Scotland, Northern Ireland and Wales. Up until now decentralised decision-making has operated in the framework of EU law and been constrained by it. Absent the EU, the UK will have to adopt rules which ensure that freedom of movement of goods and persons can operate across the UK. The EU has provided a model. Knowledge of how the EU ‘federal’ system works ensuring free movement across the 28 states might provide some form of template for the UK’s own developing constitution.
So, we think these are compelling reasons why EU law should continue to be taught in the UK - as it is in many US universities. This is not just special pleading; it’s necessary.