Earlier in the year, I posted on the importance of Parliament legislating to provide a new ‘constitutional instruction’ to national courts to replace that currently set out in the European Communities Act 1972 (ECA) and offer clear guidance on judicial interpretation post-Brexit (see here). The European Union (Withdrawal) Bill provides domestic courts with that instruction as part of its effort to prepare the UK legal order for the challenges of leaving the European Union. This second post reviews the terms of that instruction and reflects on the scope that it would afford national courts to shape the development of domestic law post-Brexit.
In summary, the terms of the replacement instruction to UK courts reflect the Bill’s overarching ambitions: to preserve (much of) the existing legal framework post-Brexit whilst simultaneously empowering domestic actors to forge new paths for the UK once it leaves the EU legal order. What is rather…
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Utopia, you are standing in it! 
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