I'd be interested to know how many times the word "anecdotal" featured in this thread though i will accept it was often accurate , because its difficult to describe or explain an instinctive feeling .
Reading this readers comment today i felt it perhaps lends credence to that which we could not find words to explain .
"Annabel Partridge 12 Jun 2021 10:45PM
@Kenneth Grimshaw
I might be able to help you out here, as I used to teach commercial EU law to postgraduates and constitutional law to undergraduates.
Before Brexit, EU law took effect within the UK either directly, with no involvement from the Westminster Parliament, or indirectly via EU Directives, which were transposed into UK law via secondary legislation (statutory instruments) - these also didn’t get voted on at Westminster. EU law was therefore enforceable within the UK in the same way as domestic law; indeed, it was, arguably, a type of domestic law. If there was any conflict between EU law and laws created at Westminster, as there was in the 1980s and 1990s with fishing legislation and weights and measures legislation, EU law prevailed. It was supreme. Our courts confirmed this, and it was in any event the established position under EU law (Costa v ENEL 1964), as confirmed by the ECJ before the UK even joined the EEC in 1973. (It is this supremacy principle that the German constitutional courts rather astonishingly refused to acknowledge last year, and the CJEU is now taking the German courts to task on that. Watch that space).
EU law and law-making began in 1957 once the Treaty of Rome created the EEC. It was based, naturally, on the law-making traditions of its then member states, who were then all civil code countries, the UK not having yet joined. So EU law is effectively a civil code system and our joining in 1973 made no difference to that. The cliche that under European civil code systems, nothing is permitted unless there is a law that says so (while under a common law jurisdiction like England and Wales, all is permitted unless there’s a law against it) has become rather fudged over the centuries but, in essence, there is some truth in it. EU law does effectively tend to operate on the basis that there ought to be laws for everything, and one ought only to be able to do anything with permission. By contrast, English law (can’t vouch for Scots or NI law) is still just about based on the notion of individual freedom to do whatever you like, unless there’s a law that says otherwise (hence the saying “there’s no law against it”, a saying you’d never hear in, say, France, where it would make no sense.
This contrast means that it has always been like mixing oil and water, when it comes to having EU law operating in the UK (or at least in England and Wales) alongside domestic common law-based UK laws. They are two vastly different legal traditions, and our judges have over the last 47 years had to interpret and apply both. In true English tradition, they’ve got on with the job and been pragmatic about it, which is why it didn’t really cause any ripples for so long (apart from the fishing cases). (One could argue that our judges became increasingly civil—code-y in their approach, and less common law-ish, and that would be a fair observation, although one must also always accept that legal and philosophical thought doesn’t and mustn’t stand still, and will always remain open to development and influence from elsewhere. Heaven forfend that any country’s legal system should ever be immune from ideas from outside).
Anyway, I digress. Over the 47 years of our membership, EU law has grown in significance and scope within all member states. Within the UK it has accordingly become increasingly difficult to make laws based on our common law traditional freedom-based approach without banging up against some EU law that restricts; in short, EU law had, by the time of the Leave vote, become somewhat of a stranglehold on our courts and legislators. I recall Michael Gove exclaiming in 2016 that the business of making laws, as a UK government generating them, had become virtually impossible, because of the amount of overriding stuff coming from the EU
There was, then, a pressing need to sort this out and redress the balance between EU law and domestic law-making. And it wasn’t just a question of who makes the laws, ie the UK Parliament or the EU; it was also always, crucially, a matter of what thinking or philosophy lay behind the laws - freedom-based common law, especially contract law, that sought to uphold and enforce what the parties to the contract had themselves actually agreed, or civil code-type laws that took much less notice of what the parties had actually agreed, and much more notice of what the legislators and the Commission thought “ought” to happen in a particular scenario (the latter being very disempowering and disincentivising for commercial activity)? Civil code-type law-making is, as Barnaby indicates, much more interventionist (interfering and downright bossy) than a common law system. And EU law being of the restrictive civil code type, there was, among other concerns, the sad prospect that continued freedom-based UK commercial activity would start to suffer badly from the erosion of English law. Contract law, in particular, is effectively the jewel in the crown of English law, enabling business and trade all over the world, trusted as a copper-bottomed system of private regulation, and it was in danger of being obliterated by a totally different mindset that inherently sought to control rather than enable.
The country voted to leave the EU for lots of reasons but what I have just described is effectively the sovereignty issue. On the UK’s leaving the EU, the vast body of EU law that took effect in the UK before Brexit has now been adopted into UK law, for us to ponder over at leisure and either keep or repeal, but no new EU law will henceforth take effect within the UK. All legislation from now on will be made in the UK, either at Westminster or one of the devolved parliaments.And that new legislation will be based (mostly) on our common law system; the slow erosion of that system in favour of the civil code-type of law-making used in the EU has been brought to a halt.
I said “mostly” and that is because, of course, our legal thinking is not untouched by our 47 years in the EU. There might be some repealing of adopted EU law, but modern lawyers, judges and legislators won’t all suddenly start thinking exclusively in common law terms like they did in the 19th century. We’re not going backwards; that isn’t possible or desirable. No, what Brexit represents is an alteration of the course our ship is steering. We were on a ever-more EU law-based course, watching the common law way of thinking erode away, and now we’re on a more balanced course, whereby the common law elements of our legal system, which protect our inherent freedom, keep going.
Who knows how it will pan out. There was a very valid argument in favour of Remain that was never made much of during 2016, and that was that it was basically too late to leave, so enmeshed were we in the EU. This argument was generally made on economic grounds, on the “can’t unscramble a scrambled egg” principle, although it wasn’t very convincing in that context, businesses being entirely designed and motivated to adapt and find new markets, which they’re doing. But legally? I think there was a big argument to say that we were/are too legally enmeshed in the EU to leave. Lawyers aged 35-40 now qualified 20 years ago, when EU law and its civil-code approach already had their knees well under the table in the UK. And the older ones whose careers have survived this far and prospered have generally done so by adapting and getting with the “EU law script”; they can barely remember the time when common law thinking prevailed. But there are a few of us. Quite a high proportion of older lawyers voted Leave, and that’s why we did it. Common law thinking is worth keeping and must not erode away."