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As some colleagues and I pointed out in a discussion paper published last year, the obvious difficulty of this model is that it does not take into account the possibility of a transition period – or, as the UK government prefers, “implementation.” The United Kingdom and the European Union have tentatively agreed that a period from 29 March 2019 to 31 December 2020 will extend. During this period, EU legislation will continue to apply in the UK. And, what is essential for current purposes, this means that EU legislation is real and not a domesticated and frozen version dated 28 March 2019. But in the form in which it was adopted by Parliament just a few weeks ago, the withdrawal law does not have the effect, because it is due to the total exit – and therefore the total abolition of European legislation itself – from 29 March 2019. I am sure she will agree that it is important for Parliament to have the opportunity to debate the White Paper on the withdrawal agreement next week, in anticipation of the time constraints that are probably being exerted on this House if we are indeed thinking about the withdrawal agreement. The fact that Parliament would bother to adopt such a diabolically complex act, without obviously taking into account a widely hoped-for scenario with an interim agreement, may seem quite strange. And it is certainly strange that these issues were not more important in the debate on the withdrawal law. Nevertheless, it is probably wise to have the withdrawal law in this form on the code, as it must be put into service in the event of Non-Deal-Brexit. Under these conditions, there will be no transition or implementation period and the withdrawal law will be necessary in its current form. The difficulty, especially given the poor state of the Brexit negotiations between the EU and the British government, is that it is not clear whether there will be a withdrawal agreement. As a result, Parliament is obliged to legislate in the dark, without knowing which of the two radically different situations will apply at the end of March next year.
The White Paper does not specify what this “additional procedural step” will be. The question is whether Parliament is legally in a position to require such a measure. This should not indicate that Parliament could not legislate for such an approach, but the question arises as to what would happen if, in the future, Parliament tried to circumvent the citizens` rights provisions in the withdrawal agreement legislation, without complying with the procedural requirements in it. British constitutional law does not clearly address this issue, as it is not certain that Parliament will be able to impose the requirements it must meet by law after its introduction. I addressed this issue in an article published last year following the Prime Minister`s speech in Florence; and while it is worth reseding the subject at this point, it is best to post a more detailed comment until the bill is published. Fourth, one of the most controversial aspects of the Withdrawal Act is the broad powers it gives ministers to amend UK law, including “maintained EU law” (such as ECJ law, which is transposed into national law by law). However, in the short term, these powers will be of limited use and will be unlikely if a transition period is agreed. While it is true that powers are not limited to changing the `maintained eu law`, these amendments will be the main advantage to which powers will be conferred.
However, during a transitional period, there can be no “preserved European law” as EU law will remain in force in the UK, in accordance with the terms of the withdrawal agreement and the “saved” Court of Justice.