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.
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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.
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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.
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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.
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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.
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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.)
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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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UK politicians seem often ignorant of the law or ready to disregard it. Judicial control of administrative action ensures that citizens retain trust in the system of government. Brexit empowers the government to fulfil its avowed intent to weaken that control. How far will UK courts apply those useful concepts of EU law: not just proportionality but also respect for legitimate expectation and the duty of solicitude. Let us work to ensure that the tidal flow of EU law, in Lord Denning’s metaphor, will not ebb for a long time.
It is hard to imagine E&W judges abandoning the purposive approach to interpreting domestic law — although it may be done in the name of the (TM/E&W16th c.) mischief rule.
Thank you for these interesting thoughts.
As a non-lawyer I was a bit taken aback when I started working for the European Commission and found (contrary to some opinion in the UK) that everything we proposed to do – even in a field as humble as statistics – was tested against the ‘legal basis’ for the action. But that constraint meant that no proposal or initiative could get far unless it had been thoroughly vetted – and legal scrutiny would often allow policy or practicality questions to emerge as well.
There are certainly drawbacks to an excessively legalistic approach to policy development and implementation but when working with a diverse group of nations with varied administrative and democratic traditions this approach is a very valuable protection – and systematically under-appreciated by UK partners whether officials or politicians.
You may remember the episode of ‘Yes Minister’ where Sir Humphrey is found to have been the author of a policy note that led to unfortunate consequences for the Government (and the country, but that’s by-the-bye). His plea in mitigation “But how could I know? I’m not a lawyer” should ring down the corridors of power.
How would you apply this EU process of basing every instrument on a specific legal base? Acts of the UK Parliament are subject to no test of legality other than the Human Rights Act. Statutory Instruments must state the Act of Parliament upon which they are based, especially where they use Henry VIII powers to amend a Statute. What more should be instituted? Perhaps an external test of whether a measure, such as a PPE procurement contract, purported as justified by the emergency, is indeed justified?
Fair question, I suppose, but as I never worked in the UK Civil Service I can’t give any kind of authoritative answer. Administrative Law seemed like a contradiction in terms to a ‘pragmatic’ Brit arriving in Brussels in the 1970s but after a few years, and a few ‘original’ ideas from the Man or Woman ‘up top’ I came to think that the protection of a Legal Base was quite valuable.
All part of not having a written constitution, perhaps.
I’ve David just read the Prospect article in which David writes: “[it was said] parliamentary supremacy was respected because the courts were applying the European Communities Act 1972 and so giving effect to the intention of parliament. But in legal reality, the laws of the EEC were taking precedence over those of Westminster whenever there was a conflict.”
I’m uncomfortable with this analysis because I think there’s much to the teachings that
1) the courts, when (formerly?) disapplying an incompatible statute and substituting the relevant EU law provision as the 1972 Act orders them, are obeying Parliament’s and only Parliament’s orders: they may appear to be looking to Brussels but they are actually looking to Parliament, specific authority for their action in so disapplying and substituting flowing at every stage from Westminster statute alone;
2) that in refusing to allow implied repeal in the specific case of a statute (the 1972 Act) that *expressly ordered them not to*, whether “constitutional statute” or no, they’re merely presuming, as ordered, that the legislature doesn’t intend to repeal it (and resile from its core treaty commitment) without express words of legislation.
The test for whether all this is true or a “legal fiction” is the following thought experiment: had there been express words of repeal enacted at any time after 1 January 1973, in the absence of a process of treaty withdrawal, would UK courts have honoured those words? And the answer is of course yes!!
Thanks for another very helpful blog. I look at these matters from the perspective of a former civil servant who was involved in these matters from the very early days of our membership. Indeed, I was one of the negotiators of the first Directive on employment after accession. I was also responsible for persuading a reluctant Conservative government under Mrs Thatcher to take a successful legal case against the Commission in the European Court.
The EU did a great deal to help protect employment rights in this country, initially against the wishes of the British trade unions who felt that free collective bargaining was the principal way progress should be made. This is the more important now that the power of the unions is so much less than it was 40 years ago.
One shouldn’t be starry eyed about how wonderful the EU is, but it has had an impressively beneficial impact on our economy and our society for 50 years. It’s going to be hard to replace, particularly so long as the present bunch of charlatans rules the roost.
Thanks for this Blog, i am in no way educated enough to contribute to the discussion. But is it not true that not only
EU Law differs radicaly from common law but also most of the legal continental jurisdictions? This is an honest question, i have heard our System been called codified or roman or napoleon law. Greetings from Germany and again pardon the
Typos i am tipping this from a german Tabletten and you World not belive what autocorrect does to my writing