11 - Brexit and the Problem with Delegated Legislation

Summary

This chapter examines the impact of the process of implementing Brexit on the pre-existing constitutional problem of delegated legislation. Its core argument is that one likely legacy of the Brexit process will be (and perhaps already is) the exacerbation of the already troubling constitutional position of delegated legislation. But it does also, albeit very tentatively, highlight some indications that the Brexit process may yet lay the foundations for improving the position of delegated legislation in the UK’s constitutional landscape. After providing a critical overview of the (pre-Brexit) constitutional position of delegated legislation - and thereby setting out the context in which the heavy reliance on delegated legislation in the implementation of Brexit arose - the chapter examines the place of delegated legislation in the legislative response to Brexit, focusing in particular (but not exclusively) on delegated legislation by the UK government under the European Union (Withdrawal) Act 2018, before closing by excavating some more encouraging elements of the story.