Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act 2018

26 Pages Posted: 11 Oct 2018 Last revised: 21 Oct 2018

See all articles by Mark Elliott

Mark Elliott

University of Cambridge - Faculty of Law

Stephen Tierney

University of Edinburgh - School of Law

Date Written: September 21, 2018

Abstract

The European Union (Withdrawal) Act 2018 forms the centrepiece of the UK's domestic legal preparations for its departure from the European Union. The Act aims to capture and domesticate large swathes of EU law so as to safeguard legal continuity upon Brexit. This paper examines the process by which the Act was passed by the UK Parliament and its substantive constitutional implications, which are likely to be far-reaching. Membership of the EU has had a monumental impact not only upon the substantive law of the UK, but also upon the development of fundamental constitutional doctrines, principles and practices over more than four decades, affecting our understanding of parliamentary supremacy, the relationship between Parliament and Government, the constitutional authority of the courts and the creation and development of devolved government. The implications of the Act go far beyond the immediate task of retaining and reordering the domestic effect of EU law. The paper assesses the deeper consequences which the Act signifies for four dimensions of the constitution: the rule of law and legal certainty, parliamentary supremacy, the relationship between Parliament and government, and the UK's territorial constitution.

Keywords: constitutional law, United Kingdom constitutional law, European Union law, Brexit, parliamentary sovereignty, rule of law, separation of powers, delegated legislation, secondary legislation, devolution, territorial constitution

JEL Classification: K00, K1, K10, K19, K3, K30, K39,

Suggested Citation

Elliott, Mark C. and Tierney, Stephen, Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act 2018 (September 21, 2018). Forthcoming in Public Law; University of Cambridge Faculty of Law Research Paper No. 58/2018. Available at SSRN: https://ssrn.com/abstract=3252985

Mark C. Elliott (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Stephen Tierney

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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