European Union (Withdrawal) Bill (HC Bill 5)

A

BILL

TO

Repeal the European Communities Act 1972 and make other provision in
connection with the withdrawal of the United Kingdom from the EU.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Repeal of the ECA

1 Repeal of the European Communities Act 1972

The European Communities Act 1972 is repealed on exit day.

Retention of existing EU law

2 5Saving for EU-derived domestic legislation

(1) EU-derived domestic legislation, as it has effect in domestic law immediately
before exit day, continues to have effect in domestic law on and after exit day.

(2) In this section “EU-derived domestic legislation” means any enactment so far
as—

(a) 10made under section 2(2) of, or paragraph 1A of Schedule 2 to, the
European Communities Act 1972,

(b) passed or made, or operating, for a purpose mentioned in section
2(2)(a) or (b) of that Act,

(c) relating to anything—

(i) 15which falls within paragraph (a) or (b), or

(ii) to which section 3(1) or 4(1) applies, or

(d) relating otherwise to the EU or the EEA,

but does not include any enactment contained in the European Communities
Act 1972.

(3) 20This section is subject to section 5 and Schedule 1 (exceptions to savings and
incorporation).

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3 Incorporation of direct EU legislation

(1) Direct EU legislation, so far as operative immediately before exit day, forms
part of domestic law on and after exit day.

(2) In this Act “direct EU legislation” means—

(a) 5any EU regulation, EU decision or EU tertiary legislation, as it has effect
in EU law immediately before exit day and so far as—

(i) it is not an exempt EU instrument (for which see section 14(1)
and Schedule 6),

(ii) it is not an EU decision addressed only to a member State other
10than the United Kingdom, and

(iii) its effect is not reproduced in an enactment to which section 2(1)
applies,

(b) any Annex to the EEA agreement, as it has effect in EU law immediately
before exit day and so far as—

(i) 15it refers to, or contains adaptations of, anything falling within
paragraph (a), and

(ii) its effect is not reproduced in an enactment to which section 2(1)
applies, or

(c) Protocol 1 to the EEA agreement (which contains horizontal
20adaptations that apply in relation to EU instruments referred to in the
Annexes to that agreement), as it has effect in EU law immediately
before exit day.

(3) For the purposes of this Act, any direct EU legislation is operative immediately
before exit day if—

(a) 25in the case of anything which comes into force at a particular time and
is stated to apply from a later time, it is in force and applies
immediately before exit day,

(b) in the case of a decision which specifies to whom it is addressed, it has
been notified to that person before exit day, and

(c) 30in any other case, it is in force immediately before exit day.

(4) This section—

(a) brings into domestic law any direct EU legislation only in the form of
the English language version of that legislation, and

(b) does not apply to any such legislation for which there is no such
35version,

but paragraph (a) does not affect the use of the other language versions of that
legislation for the purposes of interpreting it.

(5) This section is subject to section 5 and Schedule 1 (exceptions to savings and
incorporation).

4 40Saving for rights etc. under section 2(1) of the ECA

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and
procedures which, immediately before exit day—

(a) are recognised and available in domestic law by virtue of section 2(1) of
the European Communities Act 1972, and

(b) 45are enforced, allowed and followed accordingly,

continue on and after exit day to be recognised and available in domestic law
(and to be enforced, allowed and followed accordingly).

European Union (Withdrawal) BillPage 3

(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations,
restrictions, remedies or procedures so far as they—

(a) form part of domestic law by virtue of section 3, or

(b) arise under an EU directive (including as applied by the EEA
5agreement) and are not of a kind recognised by the European Court or
any court or tribunal in the United Kingdom in a case decided before
exit day (whether or not as an essential part of the decision in the case).

(3) This section is subject to section 5 and Schedule 1 (exceptions to savings and
incorporation).

5 10Exceptions to savings and incorporation

(1) The principle of the supremacy of EU law does not apply to any enactment or
rule of law passed or made on or after exit day.

(2) Accordingly, the principle of the supremacy of EU law continues to apply on
or after exit day so far as relevant to the interpretation, disapplication or
15quashing of any enactment or rule of law passed or made before exit day.

(3) Subsection (1) does not prevent the principle of the supremacy of EU law from
applying to a modification made on or after exit day of any enactment or rule
of law passed or made before exit day if the application of the principle is
consistent with the intention of the modification.

(4) 20The Charter of Fundamental Rights is not part of domestic law on or after exit
day.

(5) Subsection (4) does not affect the retention in domestic law on or after exit day
in accordance with this Act of any fundamental rights or principles which exist
irrespective of the Charter (and references to the Charter in any case law are,
25so far as necessary for this purpose, to be read as if they were references to any
corresponding retained fundamental rights or principles).

(6) Schedule 1 (which makes further provision about exceptions to savings and
incorporation) has effect.

6 Interpretation of retained EU law

(1) 30A court or tribunal—

(a) is not bound by any principles laid down, or any decisions made, on or
after exit day by the European Court, and

(b) cannot refer any matter to the European Court on or after exit day.

(2) A court or tribunal need not have regard to anything done on or after exit day
35by the European Court, another EU entity or the EU but may do so if it
considers it appropriate to do so.

(3) Any question as to the validity, meaning or effect of any retained EU law is to
be decided, so far as that law is unmodified on or after exit day and so far as
they are relevant to it—

(a) 40in accordance with any retained case law and any retained general
principles of EU law, and

(b) having regard (among other things) to the limits, immediately before
exit day, of EU competences.

(4) But—

European Union (Withdrawal) BillPage 4

(a) the Supreme Court is not bound by any retained EU case law,

(b) the High Court of Justiciary is not bound by any retained EU case law
when—

(i) sitting as a court of appeal otherwise than in relation to a
5compatibility issue (within the meaning given by section
288ZA(2) of the Criminal Procedure (Scotland) Act 1995) or a
devolution issue (within the meaning given by paragraph 1 of
Schedule 6 to the Scotland Act 1998), or

(ii) sitting on a reference under section 123(1) of the Criminal
10Procedure (Scotland) Act 1995, and

(c) no court or tribunal is bound by any retained domestic case law that it
would not otherwise be bound by.

(5) In deciding whether to depart from any retained EU case law, the Supreme
Court or the High Court of Justiciary must apply the same test as it would
15apply in deciding whether to depart from its own case law.

(6) Subsection (3) does not prevent the validity, meaning or effect of any retained
EU law which has been modified on or after exit day from being decided as
provided for in that subsection if doing so is consistent with the intention of the
modifications.

(7) 20In this Act—

  • “retained case law” means—

    (a)

    retained domestic case law, and

    (b)

    retained EU case law;

  • “retained domestic case law” means any principles laid down by, and any
    25decisions of, a court or tribunal in the United Kingdom, as they have
    effect immediately before exit day and so far as they—

    (a)

    relate to anything to which section 2, 3 or 4 applies, and

    (b)

    are not excluded by section 5 or Schedule 1,

    (as those principles and decisions are modified by or under this Act or
    30by other domestic law from time to time);

  • “retained EU case law” means any principles laid down by, and any
    decisions of, the European Court, as they have effect in EU law
    immediately before exit day and so far as they—

    (a)

    relate to anything to which section 2, 3 or 4 applies, and

    (b)

    35are not excluded by section 5 or Schedule 1,

    (as those principles and decisions are modified by or under this Act or
    by other domestic law from time to time);

  • “retained EU law” means anything which, on or after exit day, continues
    to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or
    40subsection (3) or (6) above (as that body of law is added to or otherwise
    modified by or under this Act or by other domestic law from time to
    time);

  • “retained general principles of EU law” means the general principles of
    EU law, as they have effect in EU law immediately before exit day and
    45so far as they—

    (a)

    relate to anything to which section 2, 3 or 4 applies, and

    (b)

    are not excluded by section 5 or Schedule 1,

    (as those principles are modified by or under this Act or by other
    domestic law from time to time).

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Main powers in connection with withdrawal

7 Dealing with deficiencies arising from withdrawal

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—

(a) 5any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

(2) Deficiencies in retained EU law include (but are not limited to) where the
Minister considers that retained EU law—

(a) 10contains anything which has no practical application in relation to the
United Kingdom or any part of it or is otherwise redundant or
substantially redundant,

(b) confers functions on, or in relation to, EU entities which no longer have
functions in that respect under EU law in relation to the United
15Kingdom or any part of it,

(c) makes provision for, or in connection with, reciprocal arrangements
between—

(i) the United Kingdom or any part of it or a public authority in the
United Kingdom, and

(ii) 20the EU, an EU entity, a member State or a public authority in a
member State,

which no longer exist or are no longer appropriate,

(d) makes provision for, or in connection with, other arrangements
which—

(i) 25involve the EU, an EU entity, a member State or a public
authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s
membership of the EU,

and which no longer exist or are no longer appropriate,

(e) 30makes provision for, or in connection with, any reciprocal or other
arrangements not falling within paragraph (c) or (d) which no longer
exist, or are no longer appropriate, as a result of the United Kingdom
ceasing to be a party to any of the EU Treaties,

(f) does not contain any functions or restrictions which—

(i) 35were in an EU directive and in force immediately before exit
day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) But retained EU law is not deficient merely because it does not contain any
40modification of EU law which is adopted or notified, comes into force or only
applies on or after exit day.

(4) Regulations under this section may make any provision that could be made by an Act
of Parliament.

(5) Regulations under this section may (among other things)—

(a) 45provide for functions of EU entities or public authorities in member States
(including making an instrument of a legislative character or providing
funding) to be—

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(i) exercisable instead by a public authority (whether or not newly
established or established for the purpose) in the United Kingdom, or

(ii) replaced, abolished or otherwise modified, or

(b) provide for the establishment of public authorities in the United
5Kingdom to carry out functions provided for by regulations under this
section.

(6) But regulations under this section may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) 10create a relevant criminal offence,

(d) be made to implement the withdrawal agreement,

(e) amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it, or

(f) amend or repeal the Northern Ireland Act 1998 (unless the regulations
15are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are
amending or repealing paragraph 38 of Schedule 3 to the Northern
Ireland Act 1998 or any provision of that Act which modifies another
enactment).

(7) No regulations may be made under this section after the end of the period of
20two years beginning with exit day.

(8) The reference in subsection (1) to a failure or other deficiency arising from the
withdrawal of the United Kingdom from the EU includes a reference to any
failure or other deficiency arising from that withdrawal taken together with the
operation of any provision, or the interaction between any provisions, made by
25or under this Act.

8 Complying with international obligations

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent or remedy any breach, arising from
the withdrawal of the United Kingdom from the EU, of the international
30obligations of the United Kingdom.

(2) Regulations under this section may make any provision that could be made by an Act
of Parliament.

(3) But regulations under this section may not—

(a) make retrospective provision,

(b) 35create a relevant criminal offence,

(c) be made to implement the withdrawal agreement, or

(d) amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

(4) No regulations may be made under this section after the end of the period of
40two years beginning with exit day.

9 Implementing the withdrawal agreement

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate for the purposes of implementing the
withdrawal agreement if the Minister considers that such provision should be
45in force on or before exit day.

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(2) Regulations under this section may make any provision that could be made by an Act
of Parliament (including modifying this Act).

(3) But regulations under this section may not—

(a) impose or increase taxation,

(b) 5make retrospective provision,

(c) create a relevant criminal offence, or

(d) amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

(4) No regulations may be made under this section after exit day.

10Devolution

10 Corresponding powers involving devolved authorities

Schedule 2 (which confers powers to make regulations involving devolved
authorities which correspond to the powers conferred by sections 7 to 9) has
effect.

11 15Retaining EU restrictions in devolution legislation etc.

(1) In section 29 of the Scotland Act 1998 (legislative competence of the Scottish
Parliament)—

(a) in subsection (2)(d) (no competence for Scottish Parliament to legislate
incompatibly with EU law) for “with EU law” substitute “in breach of
20the restriction in subsection (4A)”, and

(b) after subsection (4) insert—

(4A) Subject to subsections (4B) and (4C), an Act of the Scottish
Parliament cannot modify, or confer power by subordinate
legislation to modify, retained EU law.

(4B) 25Subsection (4A) does not apply so far as the modification
would, immediately before exit day, have been within the
legislative competence of the Scottish Parliament.

(4C) Subsection (4A) also does not apply so far as Her Majesty may
by Order in Council provide.”

(2) 30In section 108A of the Government of Wales Act 2006 (legislative competence
of the National Assembly for Wales)—

(a) in subsection (2)(e) (no competence for Assembly to legislate
incompatibly with EU law) for “with EU law” substitute “in breach of
the restriction in subsection (8)”, and

(b) 35after subsection (7) insert—

(8) Subject to subsections (9) and (10), an Act of the Assembly
cannot modify, or confer power by subordinate legislation to
modify, retained EU law.

(9) Subsection (8) does not apply so far as the modification would,
40immediately before exit day, have been within the legislative
competence of the Assembly.

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(10) Subsection (8) also does not apply so far as Her Majesty may by
Order in Council provide.

(11) No recommendation is to be made to Her Majesty in Council to
make an Order in Council under subsection (10) unless a draft
5of the statutory instrument containing the Order in Council has
been laid before, and approved by a resolution of, each House
of Parliament and the Assembly.”

(3) In section 6 of the Northern Ireland Act 1998 (legislative competence of the
Northern Ireland Assembly)—

(a) 10in subsection (2)(d) (no competence for Assembly to legislate
incompatibly with EU law) for “incompatible with EU law” substitute
“in breach of the restriction in subsection (6)”, and

(b) after subsection (5) insert—

(6) Subject to subsections (7) and (8), an Act of the Assembly cannot
15modify, or confer power by subordinate legislation to modify,
retained EU law.

(7) Subsection (6) does not apply so far as the modification would,
immediately before exit day, have been within the legislative
competence of the Assembly.

(8) 20Subsection (6) also does not apply so far as Her Majesty may by
Order in Council provide.

(9) No recommendation shall be made to Her Majesty to make an
Order in Council under subsection (8) unless a draft of the
Order—

(a) 25has been laid before and approved by resolution of each
House of Parliament, and

(b) has been laid before and approved by resolution of the
Assembly.”

(4) Part 1 of Schedule 3 (which makes corresponding provision in relation to
30executive competence to that made by subsections (1) to (3) in relation to
legislative competence) has effect.

(5) Part 2 of Schedule 3 (which contains other amendments of devolution
legislation) has effect.

Financial and other matters

12 35Financial provision

(1) Schedule 4 (which contains powers in connection with fees and charges) has effect.

(2) A Minister of the Crown, government department or devolved authority may incur
expenditure, for the purpose of, or in connection with, preparing for anything about
which provision may be made under a power to make subordinate legislation conferred
40or modified by or under this Act, before any such provision is made.

(3) There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown, government department
or other public authority by virtue of this Act, and

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(b) any increase attributable to this Act in the sums payable by virtue of any other
Act out of money so provided.

(4) Subsection (3) is subject to any other provision made by or under this Act or any other
enactment.

13 5Publication and rules of evidence

(1) Part 1 of Schedule 5 (which makes provision for the publication by the Queen’s
printer of copies of retained direct EU legislation and related information) has
effect.

(2) Part 2 of Schedule 5 (which makes provision about rules of evidence) has effect.

10General and final provision

14 Interpretation

(1) In this Act—

  • “Charter of Fundamental Rights” means the Charter of Fundamental
    Rights of the European Union of 7 December 2000, as adapted at
    15Strasbourg on 12 December 2007;

  • “devolved authority” means—

    (a)

    the Scottish Ministers,

    (b)

    the Welsh Ministers, or

    (c)

    a Northern Ireland department;

  • 20“domestic law” means—

    (a)

    in section 3, the law of England and Wales, Scotland and
    Northern Ireland, and

    (b)

    in any other case, the law of England and Wales, Scotland or
    Northern Ireland;

  • 25“the EEA” means the European Economic Area;

  • “enactment” means an enactment whenever passed or made and
    includes—

    (a)

    an enactment contained in any Order in Council, order, rules,
    regulations, scheme, warrant, byelaw or other instrument made
    30under an Act,

    (b)

    an enactment contained in, or in an instrument made under, an
    Act of the Scottish Parliament,

    (c)

    an enactment contained in, or in an instrument made under, a
    Measure or Act of the National Assembly for Wales,

    (d)

    35an enactment contained in, or in an instrument made under,
    Northern Ireland legislation, and

    (e)

    except in section 2 or where there is otherwise a contrary
    intention, any retained direct EU legislation;

  • EU decision” means—

    (a)

    40a decision within the meaning of Article 288 of the Treaty on the
    Functioning of the European Union, or

    (b)

    a decision under former Article 34(2)(c) of the Treaty on
    European Union;

  • EU directive” means a directive within the meaning of Article 288 of the
    45Treaty on the Functioning of the European Union;

  • European Union (Withdrawal) BillPage 10

  • EU entity” means an EU institution or any office, body or agency of the
    EU;

  • EU reference” means—

    (a)

    any reference to the EU, an EU entity or a member State,

    (b)

    5any reference to an EU directive or any other EU law, or

    (c)

    any other reference which relates to the EU;

  • EU regulation” means a regulation within the meaning of Article 288 of
    the Treaty on the Functioning of the European Union;

  • EU tertiary legislation” means—

    (a)

    10any provision made under—

    (i)

    an EU regulation,

    (ii)

    a decision within the meaning of Article 288 of the
    Treaty on the Functioning of the European Union, or

    (iii)

    an EU directive,

    15by virtue of Article 290 or 291(2) of the Treaty on the
    Functioning of the European Union or former Article 202 of the
    Treaty establishing the European Community, or

    (b)

    any measure adopted in accordance with former Article 34(2)(c)
    of the Treaty on European Union to implement decisions under
    20former Article 34(2)(c),

    but does not include any such provision or measure which is an EU
    directive;

  • “exempt EU instrument” means anything which is an exempt EU
    instrument by virtue of Schedule 6;

  • 25“exit day” means such day as a Minister of the Crown may by regulations
    appoint (and see subsection (2));

  • “member State” (except in the definitions of “direct EU legislation” and
    EU reference”) does not include the United Kingdom;

  • “Minister of the Crown” has the same meaning as in the Ministers of the
    30Crown Act 1975 and also includes the Commissioners for Her
    Majesty’s Revenue and Customs;

  • “modify” includes amend, repeal or revoke (and related expressions are
    to be read accordingly);

  • “Northern Ireland devolved authority” means the First Minister and
    35deputy First Minister in Northern Ireland acting jointly, a Northern
    Ireland Minister or a Northern Ireland department;

  • “primary legislation” means—

    (a)

    an Act of Parliament,

    (b)

    an Act of the Scottish Parliament,

    (c)

    40a Measure or Act of the National Assembly for Wales, or

    (d)

    Northern Ireland legislation;

  • “public authority” means a public authority within the meaning of section
    6 of the Human Rights Act 1998;

  • “relevant criminal offence” means an offence for which an individual who
    45has reached the age of 18 (or, in relation to Scotland or Northern
    Ireland, 21) is capable of being sentenced to imprisonment for a term of
    more than 2 years (ignoring any enactment prohibiting or restricting
    the imprisonment of individuals who have no previous convictions);

  • “retained direct EU legislation” means any direct EU legislation which
    50forms part of domestic law by virtue of section 3 (as modified by or

    European Union (Withdrawal) BillPage 11

    under this Act or by other domestic law from time to time, and
    including any instruments made under it on or after exit day);

  • “retrospective provision”, in relation to provision made by regulations,
    means provision taking effect from a date earlier than the date on which
    5the regulations are made;

  • “subordinate legislation” means—

    (a)

    any Order in Council, order, rules, regulations, scheme,
    warrant, byelaw or other instrument made under any Act, or

    (b)

    any instrument made under an Act of the Scottish Parliament,
    10Northern Ireland legislation or a Measure or Act of the National
    Assembly for Wales,

    and (except in Schedule 2 or where there is a contrary intention)
    includes any Order in Council, order, rules, regulations, scheme,
    warrant, byelaw or other instrument made on or after exit day under
    15any retained direct EU legislation;

  • “tribunal” means any tribunal in which legal proceedings may be
    brought;

  • “Wales” and “Welsh zone” have the same meaning as in the Government
    of Wales Act 2006 (see section 158 of that Act);

  • 20“withdrawal agreement” means an agreement (whether or not ratified)
    between the United Kingdom and the EU under Article 50(2) of the
    Treaty on European Union which sets out the arrangements for the
    United Kingdom’s withdrawal from the EU.

(2) In this Act—

(a) 25where a Minister of the Crown appoints a time as well as a day as exit
day (see paragraph 16 of Schedule 7), references to before, after or on
that day, or to beginning with that day, are accordingly to be read as
references to before, after or at that time on that day or (as the case may
be) to beginning with that time on that day, and

(b) 30where a Minister of the Crown does not appoint a time as well as a day
as exit day, the reference to exit day in section 1 is to be read as a
reference to the beginning of that day.

(3) In this Act references to anything which continues to be domestic law by virtue
of section 2 include references to anything to which subsection (1) of that
35section applies which continues to be domestic law on or after exit day
(whether or not it would have done so irrespective of that section).

(4) References in this Act (however expressed) to a public authority in the United
Kingdom include references to a public authority in any part of the United
Kingdom.

(5) 40References in this Act to former Article 34(2)(c) of the Treaty on European
Union are references to that Article as it had effect at any time before the
coming into force of the Treaty of Lisbon.

(6) Any other reference in this Act to—

(a) an Article of the Treaty on European Union or the Treaty on the
45Functioning of the European Union, or

(b) Article 10 of Title VII of Protocol 36 to those treaties,

includes a reference to that Article as applied by Article 106a of the Euratom
Treaty.

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15 Index of defined expressions

(1) In this Act, the expressions listed in the left-hand column have the meaning
given by, or are to be interpreted in accordance with, the provisions listed in
the right-hand column.

Expression 5Provision
Anything which continues to be domestic law by virtue of
section 2
Section 14(3)
Article (in relation to the Treaty on European Union or the
Treaty on the Functioning of the European Union)
Section 14(6)
Charter of Fundamental Rights 10Section 14(1)
Devolved authority Section 14(1)
Direct EU legislation Section 3(2)
Domestic law Section 14(1)
The EEA Section 14(1)
EEA agreement 15Schedule 1 to the
Interpretation Act 1978
Enactment Section 14(1)
The EU Schedule 1 to the
Interpretation Act 1978
EU decision 20Section 14(1)
EU directive Section 14(1)
EU entity Section 14(1)
EU institution Schedule 1 to the
Interpretation Act 1978
EU instrument 25Schedule 1 to the
Interpretation Act 1978
Euratom Treaty Schedule 1 to the
Interpretation Act 1978
EU reference Section 14(1)
EU regulation 30Section 14(1)
European Court Schedule 1 to the
Interpretation Act 1978
EU tertiary legislation Section 14(1)
EU Treaties Schedule 1 to the
35Interpretation Act 1978
Exempt EU instrument Section 14(1)
Exit day (and related expressions) Section 14(1) and (2)
Former Article 34(2)(c) of Treaty on European Union Section 14(5)

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Expression Provision
Member State Section 14(1) and Schedule 1
to the Interpretation Act
1978
Minister of the Crown 5Section 14(1)
Modify (and related expressions) Section 14(1)
Northern Ireland devolved authority Section 14(1)
Operative (in relation to direct EU legislation) Section 3(3)
Primary legislation Section 14(1)
Public authority 10Section 14(1)
Public authority in the United Kingdom (however
expressed)
Section 14(4)
Relevant criminal offence Section 14(1) (and
paragraph 31 of Schedule 8)
Retained case law 15Section 6(7)
Retained direct EU legislation Section 14(1)
Retained domestic case law Section 6(7)
Retained EU case law Section 6(7)
Retained EU law Section 6(7)
Retained general principles of EU law 20Section 6(7)
Retrospective provision Section 14(1)
Subordinate legislation Section 14(1)
Tribunal Section 14(1)
Wales Section 14(1)
Welsh zone 25Section 14(1)
Withdrawal agreement Section 14(1)

(2) See paragraph 11 of Schedule 8 for amendments made by this Act to Schedule
1 to the Interpretation Act 1978.

16 Regulations

30Schedule 7 (which makes provision about the scrutiny by Parliament and the
devolved legislatures of regulations under this Act and contains other general
provision about such regulations) has effect.

17 Consequential and transitional provision

(1) A Minister of the Crown may by regulations make such provision as the
35Minister considers appropriate in consequence of this Act.

European Union (Withdrawal) BillPage 14

(2) The power to make regulations under subsection (1) may (among other things)
be exercised by modifying any provision made by or under an enactment.

(3) In subsection (2) “enactment” does not include primary legislation passed or
made after the end of the Session in which this Act is passed.

(4) 5Parts 1 and 2 of Schedule 8 (which contain consequential provision) have effect.

(5) A Minister of the Crown may by regulations make such transitional, transitory
or saving provision as the Minister considers appropriate in connection with
the coming into force of any provision of this Act or the appointment of exit
day.

(6) 10Parts 3 and 4 of Schedule 8 (which contain transitional, transitory and saving
provision) have effect.

(7) The enactments mentioned in Schedule 9 (which contains repeals not made
elsewhere in this Act) are repealed to the extent specified.

18 Extent

(1) 15Subject to subsections (2) and (3), this Act extends to England and Wales,
Scotland and Northern Ireland.

(2) Any provision of this Act which amends or repeals an enactment has the same
extent as the enactment amended or repealed.

(3) Regulations under section 7 or 17 may make provision which extends to
20Gibraltar—

(a) modifying any enactment which—

(i) extends to Gibraltar and relates to European Parliamentary
elections, or

(ii) extends to Gibraltar for any purpose which is connected with
25Gibraltar forming part of an electoral region, under the
European Parliamentary Elections Act 2002, for the purposes of
such elections, or

(b) which is supplementary, incidental, consequential, transitional,
transitory or saving provision in connection with a modification within
30paragraph (a).

19 Commencement and short title

(1) The following provisions—

(a) sections 7 to 10 (including Schedule 2),

(b) section 12 (including Schedule 4),

(c) 35sections 14 to 16 (including Schedules 6 and 7),

(d) section 17(1) to (3) and (5),

(e) section 18, and

(f) this section,

come into force on the day on which this Act is passed.

(2) 40The remaining provisions of this Act come into force on such day as a Minister
of the Crown may by regulations appoint; and different days may be
appointed for different purposes.

(3) This Act may be cited as the European Union (Withdrawal) Act 2017.

European Union (Withdrawal) BillPage 15

SCHEDULES

Section 5(6)

SCHEDULE 1 Further provision about exceptions to savings and incorporation

Challenges to validity of retained EU law

1 (1) 5There is no right in domestic law on or after exit day to challenge any
retained EU law on the basis that, immediately before exit day, an EU
instrument was invalid.

(2) Sub-paragraph (1) does not apply so far as—

(a) the European Court has decided before exit day that the instrument
10is invalid, or

(b) the challenge is of a kind described, or provided for, in regulations
made by a Minister of the Crown.

(3) Regulations under sub-paragraph (2)(b) may (among other things) provide
for a challenge which would otherwise have been against an EU institution
15to be against a public authority in the United Kingdom.

General principles of EU law

2 No general principle of EU law is part of domestic law on or after exit day if
it was not recognised as a general principle of EU law by the European Court
in a case decided before exit day (whether or not as an essential part of the
20decision in the case).

3 (1) There is no right of action in domestic law on or after exit day based on a
failure to comply with any of the general principles of EU law.

(2) No court or tribunal or other public authority may, on or after exit day—

(a) disapply or quash any enactment or other rule of law, or

(b) 25quash any conduct or otherwise decide that it is unlawful,

because it is incompatible with any of the general principles of EU law.

Rule in Francovich

4 There is no right in domestic law on or after exit day to damages in
accordance with the rule in Francovich.

30Interpretation

5 (1) References in section 5 and this Schedule to the principle of the supremacy
of EU law, the Charter of Fundamental Rights, any general principle of EU
law or the rule in Francovich are to be read as references to that principle,

European Union (Withdrawal) BillPage 16

Charter or rule so far as it would otherwise continue to be, or form part of,
domestic law on or after exit day in accordance with this Act.

(2) Accordingly (among other things) the references to the principle of the
supremacy of EU law in section 5(2) and (3) do not include anything which
5would bring into domestic law any modification of EU law which is adopted
or notified, comes into force or only applies on or after exit day.

Section 10

SCHEDULE 2 Corresponding powers involving devolved authorities

Part 1 10Dealing with deficiencies arising from withdrawal

Power to deal with deficiencies

1 (1) A devolved authority may by regulations make such provision as the
devolved authority considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) 15any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

(2) A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate to prevent,
remedy or mitigate—

(a) 20any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

(3) Section 7(2) to (8) apply for the purposes of this Part as they apply for the purposes
of section 7 (including the reference to the Minister in section 7(2) being read as a
25reference to the devolved authority or (as the case may be) the Minister acting jointly
with the devolved authority).

(4) Regulations under this Part, so far as made by a devolved authority—

(a) are subject to paragraphs 2 to 8, and

(b) may not confer a power to legislate (other than a power to make rules
30of procedure for a court or tribunal).

(5) Sub-paragraph (4)(b) does not prevent any modification of a power to
legislate which involves an extension of the power and does not go beyond
the subject-matter of the power.

No power to make provision outside devolved competence

2 (1) 35No regulations may be made under this Part by a devolved authority unless
every provision of them is within the devolved competence of the devolved
authority.

(2) See paragraphs 9 to 12 for the meaning of “devolved competence” for the
purposes of this Part.

European Union (Withdrawal) BillPage 17

No power to modify retained direct EU legislation etc.

3 (1) No regulations may be made under this Part by a devolved authority which
modify any retained direct EU legislation or anything which is retained EU
law by virtue of section 4.

(2) 5No regulations may be made under this Part by a devolved authority which,
when made, are inconsistent with any modification (whether or not in force)
made by this Act, or a Minister of the Crown under this Act, of—

(a) any retained direct EU legislation, or

(b) anything which is retained EU law by virtue of section 4.

10No power to confer certain functions relating to EU tertiary legislation

4 No regulations may be made under this Part by a devolved authority which
confer functions which correspond to functions to make EU tertiary
legislation.

Requirement for consent in certain circumstances

5 15No regulations may be made under this Part without the consent of a
Minister of the Crown by a devolved authority acting alone so far as the
regulations—

(a) are to come into force before exit day, or

(b) remove (whether wholly or partly) reciprocal arrangements of the
20kind mentioned in section 7(2)(c) or (e).

Requirement for consent where it would otherwise be required

6 (1) The consent of a Minister of the Crown is required before any provision is
made by the Welsh Ministers in regulations under this Part so far as that
provision, if contained in an Act of the National Assembly for Wales, would
25require the consent of a Minister of the Crown.

(2) The consent of the Secretary of State is required before any provision is made
by a Northern Ireland department in regulations under this Part so far as
that provision, if contained in an Act of the Northern Ireland Assembly,
would require the consent of the Secretary of State.

(3) 30Sub-paragraph (1) or (2) does not apply if—

(a) the provision could be contained in subordinate legislation made
otherwise than under this Act by the Welsh Ministers acting alone or
(as the case may be) a Northern Ireland devolved authority acting
alone, and

(b) 35no such consent would be required in that case.

(4) The consent of a Minister of the Crown is required before any provision is
made by a devolved authority in regulations under this Part so far as that
provision, if contained in—

(a) subordinate legislation made otherwise than under this Act by the
40devolved authority, or

(b) subordinate legislation not falling within paragraph (a) and made
otherwise than under this Act by (in the case of Scotland) the First
Minister or Lord Advocate acting alone or (in the case of Northern
Ireland) a Northern Ireland devolved authority acting alone,

European Union (Withdrawal) BillPage 18

would require the consent of a Minister of the Crown.

(5) Sub-paragraph (4) does not apply if—

(a) the provision could be contained in—

(i) an Act of the Scottish Parliament, an Act of the National
5Assembly for Wales or (as the case may be) an Act of the
Northern Ireland Assembly, or

(ii) different subordinate legislation of the kind mentioned in
sub-paragraph (4)(a) or (b), and

(b) no such consent would be required in that case.

10Requirement for joint exercise where it would otherwise be required

7 (1) No regulations may be made under this Part by the Scottish Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
exercisable by—

(a) 15the Scottish Ministers acting jointly with a Minister of the Crown, or

(b) the First Minister or Lord Advocate acting jointly with a Minister of
the Crown,

unless the regulations are, to that extent, made jointly with the Minister of
the Crown.

(2) 20No regulations may be made under this Part by the Welsh Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
exercisable by the Welsh Ministers acting jointly with a Minister of the
Crown, unless the regulations are, to that extent, made jointly with the
25Minister of the Crown.

(3) No regulations may be made under this Part by a Northern Ireland
department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by—

(a) 30a Northern Ireland department acting jointly with a Minister of the
Crown, or

(b) another Northern Ireland devolved authority acting jointly with a
Minister of the Crown,

unless the regulations are, to that extent, made jointly with the Minister of
35the Crown.

(4) Sub-paragraph (1), (2) or (3) does not apply if the provision could be
contained in—

(a) an Act of the Scottish Parliament, an Act of the National Assembly
for Wales or (as the case may be) an Act of the Northern Ireland
40Assembly without the need for the consent of a Minister of the
Crown, or

(b) different subordinate legislation made otherwise than under this Act
by—

(i) the Scottish Ministers, the First Minister or the Lord
45Advocate acting alone,

(ii) the Welsh Ministers acting alone, or

(iii) (as the case may be), a Northern Ireland devolved authority
acting alone.

European Union (Withdrawal) BillPage 19

Requirement for consultation where it would otherwise be required

8 (1) No regulations may be made under this Part by the Welsh Ministers, so far
as they contain provision which, if contained in an Act of the National
Assembly for Wales, would require consultation with a Minister of the
5Crown, unless the regulations are, to that extent, made after consulting with
the Minister of the Crown.

(2) No regulations may be made under this Part by the Scottish Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
10exercisable by the Scottish Ministers, the First Minister or the Lord Advocate
after consulting with a Minister of the Crown, unless the regulations are, to
that extent, made after consulting with the Minister of the Crown.

(3) No regulations may be made under this Part by the Welsh Ministers, so far
as they contain provision which relates to a matter in respect of which a
15power to make subordinate legislation otherwise than under this Act is
exercisable by the Welsh Ministers after consulting with a Minister of the
Crown, unless the regulations are, to that extent, made after consulting with
the Minister of the Crown.

(4) No regulations may be made under this Part by a Northern Ireland
20department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by a Northern Ireland department after
consulting with a Minister of the Crown, unless the regulations are, to that
extent, made after consulting with the Minister of the Crown.

(5) 25Sub-paragraph (2), (3) or (4) does not apply if—

(a) the provision could be contained in an Act of the Scottish Parliament,
an Act of the National Assembly for Wales or (as the case may be) an
Act of the Northern Ireland Assembly, and

(b) there would be no requirement for the consent of a Minister of the
30Crown, or for consultation with a Minister of the Crown, in that case.

(6) Sub-paragraph (2), (3) or (4) does not apply if—

(a) the provision could be contained in different subordinate legislation
made otherwise than under this Act by—

(i) the Scottish Ministers, the First Minister or the Lord
35Advocate acting alone,

(ii) the Welsh Ministers acting alone, or

(iii) (as the case may be), a Northern Ireland devolved authority
acting alone, and

(b) there would be no requirement for the consent of a Minister of the
40Crown, or for consultation with a Minister of the Crown, in that case.

Meaning of devolved competence: Part 1

9 (1) A provision is within the devolved competence of the Scottish Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the Scottish
45Parliament if it were contained in an Act of that Parliament (ignoring
section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law
and retained EU law), or