14th December 2020
Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.
Please go over there to have a read – and I just want to develop and add some points here.
European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).
By ‘radical’ I mean (literally) that it went to the root of things.
The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.
The impact of European Union was also to how one thought about law – and about policy and politics.
First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.
This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.
And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.
And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.
As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.
Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.
(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)
In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.
There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.
European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.
The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.
Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.
And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.
This was a recurring mistake for United Kingdom politicians.
For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.
But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.
There were, however, real limits to what the European Union could agree to, at least without treaty changes.
And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.
The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.
You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.
Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).
And this is partly because my own ultimate view on Brexit is ambivalent.
In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.
It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.
(And it did not.)
But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.
(And it has not been.)
The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.
It is not going to be a neat clean break.
And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.
The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.
Its influence, however, will continue for decades.
The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.
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