Aidan O’Neill QC
In his 1867 poem ‘Dover Beach’, the Victorian poet and critic Matthew Arnold marked and lamented the loss of the (religious) certainties that, for him, had underpinned the cultural and intellectual life of the England in which he had been brought up. As he wrote:
The sea of faith was once, too, at the full,
And round earth’s shore lay like the folds of a bright girdle furled.
But now I only hear its melancholy, long, withdrawing roar,
Retreating, to the breath of the night-wind, down the vast edges drear
And naked shingles of the world.
One hundred and fifty years on, ‘the melancholy, long, withdrawing roar’ now heard in the land is the ebbing tide of EU law, as it retreats from our estuaries, firths and rivers. The provisions of the European Union (Withdrawal) Bill (`Withdrawal Bill’) (which at the time of writing was before Parliament) will, if enacted as introduced, dam it from our shores, because Parliament will thereby have decreed that the Treaty is no longer to be part of our law.
There is already some evidence of declining reliance upon EU law by the UK Supreme Court (‘the Court’). The 2016–2017 legal year marks the first full year since the Brexit referendum result. In this post referendum year, EU law was referred to, and played a part in the decision, in just 14 of the 71 cases decided by the Court. At just under 20% of its total cases, this marks a drop from the 25% of cases from the Court which we noted in the previous 2015–2016 legal year to contain an EU law element.
Judgments handed down by the Court during the 2016–2017 legal year underline the extent to which EU law permeates the law in the UK. There have been judgments in the following areas of practice: UK constitutional law; fundamental rights to access to the court and effective remedy; EU citizenship rights and free movement of persons; Francovich damages and San Giorgio recovery of EU incompatible levies; equality law; private international law; and intellectual property law.
Despite the Brexit processes, the Court continues to comply with its obligations under art 4(3) of the TEU by exercising its powers under art 267 of the Treaty on the Functioning of the European Union to make preliminary references to the CJEU on issues of EU law which the Court consider necessary for its determination. Politically however, the Brexit process appears to have moved on little, if at all, in the period since the June 2016 referendum result and the UK Government’s wishes as regards the UK’s future relationship with Europe remain wholly unclear. Matthew Arnold concludes his poem, Dover Beach, with the lines that the tide’s ebb has left us:
here as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night.
His words continue to resonate.
This is an excerpt from a chapter in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 8: 2016-2017 Legal Year (Appellate Press 2017).
 Aidan O’Neill QC and Aidan Wills, ‘European Dimensions’ in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 7: 2015–2016 Legal Year (rev edn, Appellate Press 2017) 336, 336.