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Much the most significant external influence on the development of the common law in its history has been triggered by the accession of the United Kingdom to the (then) EEC in 1973. At the time, Lord Denning expressed the impact of this occurrence in the apocalyptic language of reverse Churchillianism. “The Treaty [of Rome] is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back . . . Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.” A few years later: “The flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.”

Subsequent judges have tended to denigrate this view. Lord Goff mischievously wondered whether his former colleague had forgotten that tides go out as well as come in. He pointed out that the European Court was open to influence from national laws, including our common law. Lord Neuberger has said that Lord Denning ought to have been invigorated by “yet another external influence” on the common law (an allusion to the magpie tendency referred to above). Serving judges are constrained in what they can say, and have to make do with the legal tools available to them. Some are also enthusiastic Europeanists. It must however be pointed out that the sheer scale of the incursion of EU laws and directives which have altered and affected domestic English law (though not commercial law to any significant extent), together with the fact that we cannot choose whether or not we wish to adhere to them, make a parallel with the judicious borrowings of Lord Mansfield in the 18th century seem somewhat far-fetched.

Lord Denning was already an old man when he made his remarks. He loved the common law, and had contributed as much to it as any 20th-century judge. The extent to which judges are relaxed about the encroachment of European law into English law is, like many matters European, one of taste. But the 27 countries which will remain in the EU after March 2019 have (with the historical exceptions identified) showed little general interest in the way we do things here. The European Court is wont to reject a submission based on common law doctrine by saying that it is “only recognised in a limited number of Contracting States” — majoritarian reasoning which is depressing to English lawyers, who are used to an argument being weighed on its actual merits.

It may be thought an odd time to be identifying the laws of the EU as a (second) threat, given that we are shortly to leave it. Lord Neuberger, a few weeks after the referendum, saw the influence of EU law as perhaps no more than a 50-year “blip” in the life of the centuries-old common law. This already seems optimistic. Although the future is uncertain — whether the UK adopts a policy of adherence to EU laws, or one of gradual divergence — the signs are that Brexit will be an opportunity not fully taken to purge English law of what purists see as the scarring inflicted by an aberrational experiment in the pooling of legal sovereignty.
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