Reports of the death of EU law have been greatly exaggerated
Given its inherent academic value and its continued direct or indirect influence on UK law, Dr Damian Mather advises students to hang on to their EU textbooks
Some of the uncertainty of the Brexit referendum has been felt in the legal higher education sector, in particular with regard to the place of EU law modules on the qualifying law degree (QLD) and graduate diploma in law (GDL).
Since the adoption of the European Communities Act 1972, EU law has automatically had a binding status in the UK, taking precedent in areas of conflict with UK law. Its treaties, directives, and regulations
have governed aspects of employment, competition, intellectual property, consumer, tort, and environmental law,
to name but a few areas.
The impact of EU law on
the daily lives and workings
of individuals, companies, and organisations has thus been hugely significant. It has been estimated that anything between 13 and 62 per cent of laws in the UK are EU-related, with a figure in the middle of this range being more realistic. For this reason, EU law has been a compulsory component of the QLD and the GDL since the early 1990s. Following the Brexit vote, is it now a foregone conclusion that EU law has lost its relevance and will disappear from these courses?
At present, the UK is still a full member of the EU, and its laws, therefore, continue to apply
just as they have done for
the previous 44 years of its membership. This will continue until a withdrawal agreement between the UK and the EU is concluded and enters into force following an article 50 trigger, or for two years after an article 50 trigger where there has been
a failure to conclude such an agreement.
Because of this, the Solicitors Regulation Authority (SRA) and Bar Standards Board (BSB) issued a joint statement in August 2016 making clear that there will be no change to the academic requirements for qualification
as a solicitor or barrister in relation to EU law and that it will continue to be a compulsory component of the QLD and GDL for the coming academic year.
But what about the longer-term future for EU law? Assuming that the referendum result will be acted upon and an article 50 trigger will take place, the future place of EU law as a compulsory component on the QLD or GDL will depend on the relationship that is agreed between the UK and EU following withdrawal. This assumes also that the QLD and the GDL will survive the post-Legal Education and Training Review changes in
It might be that such a relationship will be based
on or similar to the so-called 'Norwegian model', whereby the UK would become a member of the European Economic Area (EEA) (comprising all EU member states, Norway, Liechtenstein, and Iceland) and would therefore remain a member of the EU's single market. There would continue to be free movement of goods, services, persons, and capital between the UK and the other EEA member states. It would also be obliged to implement EU rules on employment, consumer protection, environmental,
and competition policy.
It might be, however, that
the UK successfully negotiates opt-outs from some of the laws governing social protection and the free movement of persons, with the possibility of a brake on EU migration. Nevertheless, if this model is broadly adopted, meaning the continued application of many existing EU rules in the UK, it will be hard not to see EU law (or, more properly, European law) remaining a compulsory element on the QLD or GDL.
If, in the end, the Norwegian model is not adopted, there
is no doubt that the UK will continue to have an important relationship with the EU.
This might either be through bilateral agreements governing matters such as the free movement of goods and services and environmental
and consumer protection '“ the so-called 'Swiss model' '“ or as a member of the European Free Trade Association or the World Trade Organization as a key trading partner.
If any of these options are followed, the status of EU law
as a compulsory module on a QLD or GDL will probably cease. However, providers of legal education would be likely to continue teaching relevant elements of EU law pervasively in other related modules,
such as trade, commercial,
and environmental law, or to continue to offer EU law as
a discrete elective module because of its inherent academic value and its continued direct or indirect influence on UK law. Whatever the future holds for the relationship between the UK and Europe, EU law, in whatever form, will almost certainly continue to have a place on undergraduate law courses.
Dr Damian Mather is senrior lecturer in EU law and LLM programme director at Manchester Metropolitan University @mmu_law www.law.mmu.ac.uk