This website uses cookies

This website uses cookies to ensure you get the best experience. By using our website, you agree to our Privacy Policy

Damian Mather

Principle lecturer, Manchester Metropolitan University

Does Brexit sound the death knell for EU law in the UK?

Does Brexit sound the death knell for EU law in the UK?


Dr Damian Mather argues that on Brexit, EU law as a subject for students can survive — but in a different form

After three prime ministers, two deals and four meaningful votes, the UK is still a full member of the European Union (EU).

Three and a half years on from the Brexit referendum, Manchester Law School and other educational institutions across the UK are still teaching EU law. It is still being interpreted and fully applied by the courts on a daily basis – but for how much longer?

There is no certainty here. The death of EU law as an area of study for undergraduate law students was predicted in 2016 but any rumours of its death, even now, are greatly exaggerated.

Given that EU law remains fully integrated (or entangled) in UK law, the importance of its place within the law degree remains undiminished.

Not dead yet

The status of EU law in the UK has probably had no greater relevance to our students than it has at present – and there is more enthusiasm for the subject.

It could even be argued that student interest in the subject has increased because of the daily media attention given to Brexit; the vociferous arguments on both sides of the remain/leave debate that have subsisted within families and among friends; the Miller judgments, parliamentary divisions and the Article 50 extensions.

So if EU law is not dead in the UK, is it on life support awaiting the day it expires? Or does it have a long-term future? Similar to the withdrawal agreement reached between Theresa May and the EU in November 2018, the deal negotiated by Boris Johnson contains provisions on the implementation period between the date of the UK’s exit from the EU and entry into any type of future UK/EU partnership agreement.

This includes the rights of existing EU citizens to continue to reside in the UK; and the rights of existing UK citizens to continue to reside in the EU post transition – along with an agreed financial settlement.

Johnson’s deal does, however, remove the so-called Northern Ireland backstop. Instead it provides for Northern Ireland remaining in a UK customs territory but applying EU customs rules in the event of a failure to agree a future UK-EU partnership.

It also omits the so-called level playing field provisions in the areas of taxation, environmental protection, workers’ rights, state aid and competition.

In the shorter term, the operation of the implementation period until December 2020 (and potentially a further two years) should not affect how EU law is currently taught. The entire body of the existing substantive EU law will be effective in the UK for at least another 12 months or so.

Nevertheless, by removing the fall back provision that the UK would remain in the EU’s customs union in the event of a failure to conclude a future partnership – and removal of the previous level playing field commitments – it appears any future agreement on the relationship between the UK and EU will be much looser than at present or was envisaged by Theresa May.

All the indications are that the UK will have a similar free trade relationship with the EU as Canada, though with greater geographical proximity and a number of other discreet arrangements in areas such as air travel and research exchanges.

With this in mind, can EU law as a subject survive? The answer is yes, albeit in a different form. The relationship between the UK and EU will continue to be of the greatest importance both economically and politically.

At present, a large number of EU law undergraduate units are taught from the perspective of the EU with self-contained teaching and learning about the institutional, procedural and substantive rules as interpreted and applied to Brussels, Luxembourg and member states, including the companies and the individuals within them.

The reception of EU law into UK law, with its constitutional effects, is addressed predominantly through public law as a core unit. The implementation and application of substantive provisions within the UK legal system are normally covered in relevant individual subjects such as environmental law, consumer law and intellectual property law.

A time to revitalise

This all means it is now time for the legal sector to look at redesigning its core EU

law teachings. This could include a reframing of titles such as the ‘EU in UK law’, ‘UK-EU legal relations’ or ‘legal issues in the UK and EU’ with a focus on the impact of the Brexit withdrawal process on the UK constitution – as well as the ongoing politico-legal relations between the UK and EU.

We must also focus on the developing legal cooperation between the two, emanating from a future agreement, in areas such as trade, regulatory alignment and movement of services and capital.

Other than the academic need to understand the future legal relationship between the UK and EU and to study the two conterminously in one unit, it must be recalled that even though the Qualifying Law Degree (QLD) will be no more, knowledge of EU law will remain a requirement of passing the Solicitors Qualifying Examination (SQE) 1 assessments – a compelling practical reason for retaining EU law in some form on the curriculum.

Indicative content for an ‘EU in UK’ law unit might include:

?? The foundations of EU law, including the institutional framework and external relations law of the EU;

?? The historical relationship between the UK and EU and the political and legal aspects of the 2016 Brexit referendum;

?? The withdrawal process, the nature of the UK-EU negotiations and implications of the article 50 process for the UK and its constitutional law;

?? The evolving UK-EU legal framework including the withdrawal agreement and political declaration, transitional arrangements, dispute settlement and the possibility of exiting without an approved agreement;

?? The content of the withdrawal agreement, with particular focus on citizens’ rights and their adjudication, the special position of Northern Ireland, and financial obligations and the legal, political and economic consequences of no approval of the agreement; and

?? The nature of the future politico-legal relationship between the UK and EU and its wider political and economic implications.

We are not witnessing the final death of EU law. As an undergraduate or= postgraduate optional unit, it should be given life as part of a rich, liberal, comparative curriculum.

Against the continuing bright light of Brexit, there is no better time for a revitalised undergraduate core unit exploring what the future holds for a UK that will probably remain formally bound to the EU by a future comprehensive trade agreement; and a UK that will likely want to retain a number of existing EU rules and align itself to future ones.

One day is a long time in Brexit politics. A remain result in any second referendum might just mean EU law, as it exists now, might live for more days to come.

Dr Damian Mather is principal lecturer at Manchester Law School