Complicated – But Not Too Complicated: The Sunset of E.U. Law in the U.K. After Brexit

16 Pages Posted: 23 May 2018

Date Written: , 2018

Abstract

The British people voted in June 2016 - by a fairly narrow but decisive margin, and on a large voter turnout - to leave the European Union. The character of the EU is complicated. Leaving the EU will also be complicated.

From its outset, the EU embraced a contradiction, or at least tendencies that potentially conflict, between free trade on the one hand, and command-and-control regulation on the other. Given the somewhat Janus-faced character of the EU, the UK Brexit campaigns on both sides embraced contradictory tendencies and interests. The Leave party were both pro-freer trade and pro-more protectionism; the Remain party were both pro-free trading within the EU and at the same time, in many cases, pro-extensive regulation and rule by experts, suspicious (at best) towards market freedom.

The outcome of the referendum therefore leaves various questions open. Might the UK re-join “Europe” on essentially unchanged or on modestly changed terms, perhaps as an EFTA member, or will it get a better “special” deal with the EU, or will it trade on WTO terms? Will the UK move towards more global free trade or more protectionism? What about Scotland? What about Northern Ireland and the cross-border arrangements with the Republic of Ireland (the UK’s prospective land border with the EU)?

From a legal point of view, dis-embracing the EU will not be simple. The UK has been in the EU and hence has subjected itself to EU law and regulation over the course of four decades. Many, if not most, areas of UK law are deeply affected by EU treaties, regulations, directives, and decisions.

Prime Minister May’s government has promised that with Brexit, Parliament will enact a “savings” law to keep everything the same, and to adopt existing EU rules into UK law. This will set the stage for later statutes or regulations to change the existing rules, and of course for further controversy - which is already proving remarkably bitter - both over procedure and substance. The article provides a guide to the different forms of EU law, including judicial principles that now differ depending on whether EU or purely domestic law is at stake. The article then considers how the UK might manage - or discard - the legacy of EU law. Is the “reception” of common law by the newly independent United States after the American Revolution a helpful model? Or should the UK consider adopting a “sunset” principle for EU law? Or will EU law be cut back - minimally or extensively - by administrative regulation? Depending in part on these quasi-technical considerations, and to a greater degree on the political will of the present and future UK governments, the UK will choose how much of the EU legacy (or burden) to stick with in the years and decades ahead.

Keywords: Brexit, European Union, United Kingdom, EU Law in the UK, Sunset Laws, Sovereignty, Judicial Principles (EU and UK), European Common Market, Free Movement (EU Law), Environmental Law (EU and UK)

JEL Classification: A00, A10, K10

Suggested Citation

Schwarzschild, Maimon, Complicated – But Not Too Complicated: The Sunset of E.U. Law in the U.K. After Brexit (, 2018). Cardozo Law Review, Vol. 39, No. 3, 2018; San Diego Legal Studies Paper No. 18-348. Available at SSRN: https://ssrn.com/abstract=3182602 or http://dx.doi.org/10.2139/ssrn.3182602

Maimon Schwarzschild (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2343 (Phone)
619-260-4791 (Fax)

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