Professor Catherine Barnard, Trinity College, University of Cambridge

In his final statement concerning the review of Retained EU Law (REUL), Lord Frost indicated a desire to examine the role of EU law in legal education. While acknowledging the potential issues surrounding government influence on university curricula, and setting aside the uncertain future of the REUL review itself, Brexit has undeniably prompted significant questions for EU law academics regarding teaching approaches and content. These questions have already been the subject of extensive and ongoing discussions.

What should an EU law course include?

The Standard Model

A typical EU law curriculum generally encompasses a broad overview of key areas. This includes EU institutions, fundamental constitutional principles such as EU competence, supremacy of EU law, direct effect, human rights/Charter, legal remedies like judicial review, and usually one or two of the four freedoms, often including free movement of goods and/or competition law. This approach, which I’ll refer to as the “standard model,” is reflected in numerous textbooks, primarily from British publishers. Students completing these courses acquire a solid grasp of the EU system’s principles. The question now is whether this approach remains relevant in a post-Brexit world.

Many argue that it is, citing the following reasons:

• Understanding the EU legal system as a cohesive whole, where the internal market functions in conjunction with the Commission’s enforcement role and the system of legal remedies, remains crucial.
• Several of these fundamental principles are still operational in the UK, particularly in Northern Ireland, and understanding them within their broader context is essential.
• EU law will continue to exert both direct and indirect influence on the UK for many years to come.
• At a minimum, studying EU law serves as a valuable exercise in comparative law. Courses focusing on, for instance, US law, don’t typically analyze the US legal system solely through the lens of its impact on the UK.

The EU Relations Law Model

Conversely, others contend that the UK’s relationship with the EU has fundamentally shifted, necessitating a corresponding change in how we teach EU law. Some propose a course centered on ‘EU Relations Law’. This approach might encompass the Withdrawal Agreement (WA), including the Northern Ireland Protocol (NIP), with some consideration given to EU law principles like direct effect, legal remedies, equality law, and free movement of goods, along with the Trade and Cooperation Agreement (TCA). Any examination of the TCA would inherently require explaining the World Trade Organisation (WTO) rules, which form the basis of many free trade provisions. It could also involve exploring aspects of public international law referenced within the TCA.

Another variation on the ‘EU Relations Law’ theme involves analyzing how the WA and TCA function within domestic law. This would entail studying Retained EU law (REUL), introduced through the EU (Withdrawal) Act 2018, and the significant provisions of the EU (Future Relations Act) 2020, particularly section 29, which subjects domestic law to the TCA’s provisions.

A hybrid model

A third option involves a hybrid approach, potentially resembling the standard model but with modifications to incorporate coverage of Brexit, the WA, and TCA. Alternatively, it could be structured around EU Relations Law but with more comprehensive EU law content.

Naturally, adaptations will occur as new textbooks emerge and the nature of the UK-EU relationship evolves. The process is fluid; what holds significance today – like the function and status of REUL – may become less critical in the future. Different approaches might also be suitable for undergraduate and postgraduate levels.

Should EU law be a required course?

A more challenging question, particularly for the legal profession, specifically the bar (as there are differing views compared to the Solicitors’ Regulatory Authority), is whether EU law (in its standard, EU Relations Law, or hybrid form) should remain a fundamental, mandatory subject for aspiring legal practitioners. As a professor of EU law, my perspective comes with inherent biases. However, I believe there are four key arguments for maintaining some form of EU law as a compulsory element of legal education.

First, certain aspects of EU law will continue to apply directly within the UK. For instance, EU competition law has ‘extra-territorial’ reach. This means that agreements with potential anti-competitive implications involving, say, a UK, French, and German company could be scrutinized under EU law. Any decisions made against such a cartel could ultimately be challenged in the Court of Justice.

Second, due to the NIP, significant areas of EU law concerning goods, electricity, VAT, equality law, and potentially some social law, will remain directly applicable in Northern Ireland. The WA explicitly states that the principles of direct effect and supremacy apply to its provisions. While the WA’s impact will diminish over time, two areas where it will persist are Northern Ireland and ‘citizens’ rights’. In cases involving uncertainty regarding citizens’ rights, UK courts can continue referring to the European Court of Justice until 2028 for clarification.

Third, to comprehend the incorporation of EU rights into domestic law as ‘retained EU law,’ students need a foundation in EU law and its terminology. Courts will still need to refer to Court of Justice case law interpreting EU law, particularly pre-Brexit judgments. Students, and legal professionals, must be equipped to understand these judgments and their specific writing style.

The previous points are largely technical. My final point is more fundamental. The EU provides a valuable case study in managing a federal or quasi-federal system. It exposes students to concepts like the conferral of powers, subsidiarity, and proportionality. The EU’s internal market, the most advanced globally, has served as a model for the UK’s own internal market. Teaching internal market law also offers a gateway to understanding customs unions, free trade areas, and the broader language of international trade. This equips students to engage with UK-EU trade agreements. Without EU law, undergraduates risk entering the profession unaware of the international trade and constitutional landscape in which law operates.

Therefore, a strong case exists for retaining EU law, in some form, as a vital component of undergraduate legal education. These discussions should continue in university settings and within the legal profession itself. As educators, we must be prepared to articulate our rationale and approach to inquisitive students.

Barnard & Peers: chapter 27

Photo credit: Manchester Law Library reading room, taken by KJP1 via wikicommons