EU law in the UK, 1973-2020: an obituary

We are stronger for having known you
December 8, 2020

With the ending of the Brexit transition period set for 31st December 2020, the United Kingdom brings to an end a remarkable episode of its legal history as well as of its political and economic history.

When the UK joined the European communities on 1st January 1973, it was not only joining an international organisation and trading arrangement. Although the European Economic Community was known as “the common market,” it was always far more than a mere marketplace.

By joining the EEC, the United Kingdom was becoming part of an extraordinary and, in many ways, destabilising legal order. This should not have come as any surprise, even though many at the time affected to believe that joining the EEC was just about trade.

From its very beginning the EEC was at least as much about law as about commercial cooperation. The EEC was “intranational,” not just international, and it had its own complex institutional structure for enacting, enforcing and adjudicating its own law, and this law would take priority over national laws. Membership of the EEC meant a state had to accept this system of law in addition to its domestic law.

By the mid 1960s it was already obvious that the law of the EEC was radical and disruptive to the legal systems of its member states. Citizens of member states were already relying successfully on their rights and remedies under the Treaty of Rome and EEC directives against their own governments.

When the UK joined the EEC it knew—or at least it should have known—that there would be a profound impact on its own laws. And that effect would at times turn out to be startling. In 1990 an actual Act of Parliament was “disapplied” by the UK’s top court by reason of that statute’s incompatibility with EU law. There had never been such a direct hit on the orthodoxy of parliamentary sovereignty. Other statutory instruments were also quashed on similar grounds. The polite fiction was that the doctrine of 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.

When the EEC converted into the European Union with the Maastricht Treaty, and the policy “competencies” of the EU expanded, so did the reach of EU law. By now EU law touched upon justice and home affairs in addition to anything to do with trade. Certain policy areas, such as employment and the environment, became dominated by EU law.

This was not necessarily bad. From cleaner beaches to the increasing ease with which professional footballers could change their clubs, many areas of law and policy benefited from membership of the EU. But how these outcomes were achieved was legally different from what had gone before.

The power of EU law and policy arose primarily from the need for consistency across the union. Domestic laws might have been needed to apply these EU norms and standards, but they could not deviate from the EU standard. In practice, the implementing national laws were merely copied-and-pasted from the EU legal instruments. In the UK thousands of statutory instruments were issued in this legally automatic way, with neither real parliamentary scrutiny nor particular administrative effort.

EU law was also distinctive for how it was policed. Take, for example, the EU internal market. This not only depended on the famous (or infamous) four freedoms of movement of people, capital, goods and services. Nor did it rely entirely on common standards. It also included regulatory mechanisms for competition law, state aid, consumer protection and public procurement. As such the law took an active role in shaping and promoting competition in the internal market, rather than being a passive enabler.

The approach of the courts to questions of EU law also had knock-on effects. The principle of proportionality—that legal measures should be rationally connected to their objective and should go no further than necessary—had a refreshing effect on the brutal permissiveness of domestic public law to exercises of state power. EU law also required courts to be more alert to the purpose of legal instrument rather than pedantic literalism.

And the very concept of the “state” in domestic law itself was reformulated because of membership of the EU. Instead of a patchwork of “Crown proceedings,” prerogative rights and statutory corporations, all with different legal powers and discretions, EU law nudged domestic law towards a single set of legal standards for all those exercising public power.

Some aspects of EU law will not be missed, such as wordy instruments where the recitals were longer than the operative provisions, and opaque judgments that were devoid of adequate reasoning.

But on the whole, EU law benefited the UK, not only in the implementation of many substantive areas of policy but in how it took enforcement seriously and provided better ways of holding public bodies to account. And much of the good it did will survive the UK’s final departure. The law of the UK is far better off for this long engagement with a very different system.