The Law Teacher

ISSN: 0306-9400 (Print) 1943-0353 (Online) Journal homepage: https://www.tandfonline.com/loi/ralt20

The future of EU law as a subject in British

universities

Catherine Barnard & Paul Craig

To cite this article: Catherine Barnard & Paul Craig (2019) The future of EU law as a subject in
British universities, The Law Teacher, 53:2, 136-137, DOI: 10.1080/03069400.2019.1585079

To link to this article: https://doi.org/10.1080/03069400.2019.1585079

Published online: 29 Mar 2019.

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THE LAW TEACHER
2019, VOL. 53, NO. 2, 136–137
https://doi.org/10.1080/03069400.2019.1585079

The future of EU law as a subject in British universities

Catherine Barnarda and Paul Craigb
a
University of Cambridge, Cambridge, UK; bUniversity of Oxford, Oxford, UK

The Brexit vote precipitated something of an existential crisis among EU law aca-
demics. But we think the reports of the death of EU law as an academic subject in the
UK are exaggerated. Indeed, we would go further: never before has learning about,
and an appreciation of, the operation of EU law been so essential to understanding
the (legal) position in which the UK finds itself, the transitional arrangements that
might apply, and any future EU-UK deal. Specifically, there are seven reasons why we
think a knowledge of EU law is essential and will be in the future.
First, the UK is still in the EU and in all likelihood will be until mid-2019. Assuming
the Withdrawal Agreement is accepted by the UK and EU Parliament, the transition
period, during which time much of EU law will continue to apply, may last for at least
three years beyond that.
Second, consider the EU (Withdrawal) Act 2018 (EU(W)A 2018). It is expanding UK
law and incorporating unincorporated EU law into UK law. We know that Directives
have been implemented but the EU(W)A 2018 will also incorporate Regulations and
Decisions. This needs an understanding of the different types of rules under EU law,
their relationship with national law and EU canons of interpretation.
The EU(W)A 2018 will also incorporate directly effective Treaty provisions (more
terminology that needs an explanation) and will allow reference to the relevant “legal
bases” (i.e. powers on which Regulations and Directives are based) by UK courts when
interpreting UK law (more explanations as to the terms). The EU(W)A 2018 will
preserve the supremacy of EU pre-Brexit rules over conflicting pre-Brexit UK rules
(yet more explanation needed as to terms). It also gives pre-Brexit decisions of the
Court of Justice the same hierarchical status as those of the UK Supreme Court. This
means that students need to have an understanding of these cases, how they got to
the Court of Justice and how the Court reached its decision. And while the Charter of
Fundamental Rights is dead for the UK, the “underlying principles” will live on. More
explanation required – all of which requires knowledge of EU law.
Third, the EU will continue to be the UK’s largest trading partner. Many of our
students will work in UK law firms advising on UK and EU law. Some will work in law
firms based in EU states. They will need to know what EU law says and does. Some EU
law – especially EU competition law and state aids – has extra-territorial effect. Again,
knowledge and understanding of EU law is essential. This is particularly important for
those studying in Northern Ireland and who will continue to practise there. They may
also have Irish nationality and wish to work in the EU or in EU institutions.

CONTACT Catherine Barnard csb24@cam.ac.uk

© 2019 The Association of Law Teachers
 THE LAW TEACHER 137

Fourth, any future EU-UK trade deal will be based on, as a minimum, the Canadian
Free Trade Agreement, CETA. This uses terminology that can also be found in the EU
Treaties. An understanding of this terminology and the legal issues surrounding the
concepts under EU law will provide a window on these new trading arrangements.
And that future trade relationship will either formally mirror existing EU rules, or will
consist of rules that are deemed to be “equivalent” to the relevant EU rules. In either
eventuality, it will be impossible to understand UK law without an understanding of
the EU law on which it is based.
Fifth, the Great Repeal Bill White Paper talks, possibly for the first time, of the UK’s
own single market, comprising England, Scotland, Northern Ireland and Wales. Up
until now decentralised decision-making has operated in the framework of EU law and
has been constrained by it. Absent the EU, the UK will have to adopt rules that ensure
goods and persons can enjoy free movement across the UK. The EU has provided
a model. Knowledge of how the EU “federal” system works ensuring free movement
across the 27 states might provide some form of template for the UK’s own develop-
ing constitution.
Sixth, there is a long and healthy tradition in UK law schools of studying compara-
tive law, including US law. Why not study EU law through that prism too? We are
outward looking, open, enquiring and interested. And it is good for our sanity to see
what is being done and taught elsewhere.
Seventh, Brexit is a process, not a single event. Things will not come to a full stop
on 29 March 2019. There will be a pause, assuming the UK goes into transition, and
negotiations over the future relationship and then continuous negotiations as the EU
changes and the UK changes. This will all need informed comment from the next
generation of scholars, who will themselves need to be informed about EU law. And
there needs to be ongoing research that can be used to challenge the big lies and
assertions. For all the politicians making ideological assertions, there is a thirst on
behalf of the public for the “the truth”. Academics have got to be ready – and willing –
to provide it. This is impact in the raw.
So, we think these are compelling reasons why EU law should continue to be
taught in the UK – as it is in many US universities. This is not just special pleading. It is
necessary.