A decade of EU law in the courts of Scotland and Ireland: national legal systems compared

Imelda Maher,Rónán Riordan,Barry Rodger

doi:10.1017/lst.2020.46

Imelda Maher, Rónán Riordan + Show 1 more

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https://doi.org/10.1017/lst.2020.46

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Abstract

AbstractThis paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom's exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general.

Highlights

‘Since Ireland joined the European Economic Community in 1973 the reach of European Union law into the legal systems of all of the member states has grown to a very significant extent’
This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018
Fahey’s observations mirror that of Alter, who argued that in the early days of the EU, Member States’ lower courts were more likely to make references to the Court of Justice of the European Union (CJEU) than higher courts, with higher courts over time becoming more open to making references to the CJEU as they sought to re-assert their position within national legal orders,21 a trend discernible in Fahey’s data

Summary

Empirical research and EU law studies

As noted by Burns and Hutchinson, to view law as a closed system with doctrinal research the primary methodology to explore law as a social system. The American legal realist movement was perhaps the first to recognise the importance of studying law ‘in action’ as opposed to the law ‘on books’ through empirical work, with Miles and Sunstein recently coining the phrase ‘The New Legal Realism’.9 This paper is a quantitative study of case law, building on the law and politics literature that emerged in the late 1990s. Fahey’s observations mirror that of Alter, who argued that in the early days of the EU, Member States’ lower courts were more likely to make references to the CJEU than higher courts, with higher courts over time becoming more open to making references to the CJEU as they sought to re-assert their position within national legal orders, a trend discernible in Fahey’s data Maher, in her examination of EU law before the Irish courts, noted that between March 2013 and June 2017 there had been 24 references to the CJEU from all courts and tribunals in Ireland, covering a wide range of issues such as: repeat arrests in light of the charter of fundamental rights; discrimination of same-sex partners and pension entitlements; European Arrest Warrants; and applications of subsidiary protection..

Scotland and Ireland: context compared

Incorporation of EU Law into the domestic legal orders

Methodology

Findings

Conclusions