The second issue (which contributes to the first contribution) is the conditionality of the already extraordinary legislative programme implemented around Brexit. Such conditionality can be observed on two levels. At the highest level of abstraction, this is reflected in the relationship between the withdrawal law and the withdrawal agreement, the latter being a means of adapting the first to the requirements of a withdrawal agreement not yet concluded (and perhaps never concluded). At the micro-level, this is reflected in countless instruments currently in place under the Withdrawal Act, in order to amend the maintained EU legislation and to take other measures arising from the expected consequences of Brexit, but which may not be necessary, or at least not yet, if a withdrawal agreement is reached and a transition period is adopted. 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. 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. The withdrawal law must therefore be amended so that the creation or, at the very least, the population of the internal law category of the “retained European legislation” is postponed to the end of the transitional period and does not occur on the day of the withdrawal. The White Paper recognises this: “The transformation of EU legislation into `preserved EU law` … [will take place] at the end of the implementation period. In this context, the bill will extend by 21 months the period during which the amending powers can be used: they are now available to ministers until 31 December 2022, two years after the end of the hoped-for transition period. Nevertheless, legal instruments are already being developed with the intention that they will be put in place in the event of a Non-Brexit Deal in the event of a Non-Deal Brexit within the scope of the powers conferred by the Withdrawal Act, although such legal instruments will not be necessary (at least in the short term), a transitional period should be agreed. To simplify, the bill must do whatever is necessary in internal form to comply with the British part of a withdrawal agreement. An important aspect in this regard is the establishment of business assistance with regard to citizens` rights.
The White Paper addresses this issue in detail, but in this article I mention only one point about the general principles of constitutional law.