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Studying EU Law in Scotland During and After Brexit Studying EU Law in Scotland during and after Brexit Studying EU Law in Scotland during and after Brexit Open Access Resource First Edition First Edition Editors: Nicole Busby Rebecca Zahn In collaboration with the Scottish Universities Legal Network on Europe PUBLICATION FROM Scottish Universities Legal Network on Europe sulne.ac.uk This publication is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License First Edition – Published October 2017 Design and typesetting by Anthony Salamone Set in Source Sans Pro, used under the SIL Open Font License Studying EU Law in Scotland during and after Brexit Table of Contents Foreword Noreen Burrows and Jo Shaw Chapter 1 Introduction Nicole Busby and Rebecca Zahn Chapter 2 Study Skills Maria Fletcher, Tamara Hervey and Sarah McCloskey Chapter 3 The Vote to Leave the EU: Why Did It Happen and What Has Happened Since? Daniel Kenealy Chapter 4 Constitutional Law Aileen McHarg Chapter 5 Free Movement of Goods Andrew Farrer Chapter 6 Free Movement of Services and Freedom of Establishment Justin Borg-Barthet Chapter 7 Competition Law and Policy Arianna Andreangeli and Siobhan Kahmann Chapter 8 Free Movement of Persons and EU Citizenship Maria Fletcher and Nina Miller Westoby Chapter 9 Equality Law Nicole Busby, Muriel Robison and Michelle Weldon-Johns Chapter 10 Employment Law Rebecca Zahn Chapter 11 Environmental Protection and Law Miranda Geelhoed and Mara Ntona Chapter 12 Energy Law Aileen McHarg Table of Contents 3 Studying EU Law in Scotland during and after Brexit Chapter 13 Police and Judicial Cooperation in Criminal Justice Leandro Mancano, Maria Fletcher and Maria O’Neill Chapter 14 Human Rights Law Clare Frances Moran Chapter 15 EU External Relations Paul James Cardwell and Lorna Gillies Chapter 16 (External) Trade Law Tamara Hervey and Sarah McCloskey Chapter 17 EU Private International Law Lorna Gillies Chapter 18 The Position of EU Law on the Route to Qualification as a Solicitor Post-Brexit Rob Marrs Chapter 19 The Future Place of EU Law in Admission to the Faculty of Advocates Kirsty Hood QC Table of Contents 4 Studying EU Law in Scotland during and after Brexit Foreword Noreen Burrows University of Glasgow Co-Chairs of the Scottish Universities Jo Shaw University of Edinburgh Legal Network on Europe The first, perhaps apocryphal, story regarding the teaching of EU law after Brexit was the one about the enterprising student who phoned the Law Society of Scotland on 24 June 2016 and asked whoever they got through to whether or not they really had to do their EU law resit examination. It appears that they received a dusty response: Oh yes, you do. Joking aside, it is clear that the teaching and learning of EU law has never been more important than it is now. For years, those of us who have taught EU law at various levels in universities have struggled with raising interest in the concept of the non-tariff barrier to trade in goods. Endless bottles of Cassis have been supped in class in the search for enlightenment. It was certainly hard to find examples of media discussions of basic internal market trade law issues, even in the field of services, that could bring the importance of these matters to the modern economy alive for students. In the constitutional sphere, there remained a residual sense even amongst legal academics that EU law was somehow separate to the core UK legal order. Now, of course, although the newspapers and other broadcast and web outlets for news and commentary still contain more than a modicum of misleading and frankly incorrect reports about EU law, there is a great deal more informed reporting and informed commentary than ever before. Legal academics have been to the fore – especially on social media, where they have tried to correct many a misapprehension. Activities in the legal sphere, including the Miller case and the precise and illuminating work by some parliamentary committees, have painted an alarming picture for all to see of just how badly the UK’s constitutional fabric might be ripped apart (in relation to matters such as parliamentary oversight of the executive, protection of human rights and the territorial dimension) by a badly conceived and implemented Brexit. With the UK – at the time of writing – still contemplating what might precisely be its legal status after 29 March 2019, it is more important than ever that law students, and any other interested parties – whether in universities or beyond – who come across our open access materials, are fully informed about the character of those different options, whether for a transition towards an EEA-type option or a so-called ‘cliff-edge’ Brexit with WTO rules coming immediately into play. We are very grateful to our colleagues in the Scottish Law Schools (and in a few cases beyond – both in geographical and disciplinary terms) for putting together this important project under the umbrella of the Scottish Universities Legal Network on Europe (SULNE), making full use of the flexibility and immediacy of internet technology. In particular, we would like to thank Nicole Busby and Rebecca Zahn of Strathclyde Law School for taking a leading role and coordinating and directing this work, and the Society of Legal Scholars for providing funding to support the project. Foreword 5 Studying EU Law in Scotland during and after Brexit It is important to stress that this is ‘work-in-progress’. Best endeavours have been made to ensure the accuracy at the time of writing and ‘publishing’, but we are interested in ensuring that this process is dialogic with its readership. Do get in touch with us if you have comments or suggestions to make. Foreword 6 Studying EU Law in Scotland during and after Brexit Chapter 1 Introduction Nicole Busby University of Strathclyde Rebecca Zahn University of Strathclyde The idea for this book originated from a one-day seminar which was held at the University of Strathclyde in May 2017 as part of Engage with Strathclyde 2017 at which academics, students, practitioners and representatives from the Law Society of Scotland and the Faculty of Advocates met to discuss how best to teach EU law in Scotland during the Brexit negotiations and following the UK’s departure from the EU. The event was organised in collaboration with the Scottish Universities Legal Network on Europe (SULNE) and was generously funded by the Society of Legal Scholars. Perhaps unsurprisingly, the main theme which emerged from our discussions at the seminar was uncertainty. Although all participants were in agreement that EU law should most definitely continue to be included in the legal education syllabus in Scotland for the foreseeable future, we also agreed that it was difficult if not impossible to determine exactly what form its inclusion should take. Additional challenges were identified when it came to deciding how to guide students in their reading and research. Textbooks are likely to go out to date rather quickly and the UK’s uncharted and fast-changing position means that books written for mainstream students of EU law in other (continuing) Member States will need to be supplemented with specialised reading for UK and, in some contexts, Scottish- specific audiences. Although there are a plethora of online resources available, these are written and published by a variety of organisations and individuals and their suitability as authoritative legal texts varies considerably. We concluded by setting ourselves a challenge – how could we help students (and ourselves) to make sense of EU law as the Brexit negotiations unfolded? The result is this e-book which has been written as a collaborative venture between academics across and beyond Scotland who have spent many years teaching in and reading, researching and writing about their respective fields of expertise. It also contains contributions from Rob Marrs of the Law Society of Scotland and Kirsty Hood QC of the Faculty of Advocates. We extend our thanks to Nina Miller-Westoby and Anthony Salamone for editorial assistance. This is not a traditional textbook. It does not provide detailed coverage of all aspects of the relevant law and it is intended to be used in a particular way. Chapter 2 on Study Skills provides advice about how to stay up to date, and reminds students to refer to primary sources as the starting point when exploring any area of law. Chapters 3 to 17 provide overviews and Brexit-related analyses of a range of substantive areas of EU law. These chapters are intended to give sufficient background information on their respective topics to equip the reader with the necessary understanding to be able to engage in critical further reading. These chapters aim to supplement – not replace – mainstream reading, be it from textbooks, journal articles, professional publications or other secondary sources. The Further Reading section at the end of each chapter is purposefully ‘light touch’ so that students are expected to identify and access other sources by continuing to Chapter 1 | Introduction 7 Studying EU Law in Scotland during and after Brexit refer to course reading lists and by conducting their own searches of appropriate legal databases, alongside the mainly online sources to which this book directs them. In recommending particular sources, the chapter authors have cast their discerning eyes over the range of materials available and selected those which are most suitable in terms of usefulness and authority. The intention is to keep these recommendations updated on a regular basis. Indeed the chapters’ authors will endeavour to update the whole text on a regular basis so that the legal implications of the UK’s negotiations with the EU and their impact on both EU and UK law are reflected in the book as events unfold.
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