European Union (Withdrawal) Bill (HC Bill 5)

European Union (Withdrawal) BillPage 20

(b) it meets the conditions in sub-paragraph (2).

(2) The conditions are—

(a) the provision—

(i) amends or revokes subordinate legislation made before exit
5day by the Scottish Ministers, the First Minister or the Lord
Advocate, or

(ii) makes supplementary, incidental, consequential,
transitional, transitory or saving provision in connection
with any such amendment or revocation,

(b) 10the subject-matter of the provision does not go beyond the subject-
matter of the subordinate legislation concerned,

(c) the provision only forms part of the law of Scotland,

(d) the provision does not confer or remove functions exercisable
otherwise than in or as regards Scotland, and

(e) 15the provision does not modify any enactment so far as the enactment
cannot, by virtue of paragraph 1, 4 or 5 of Schedule 4 to the Scotland
Act 1998, be modified by an Act of the Scottish Parliament.

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

(a) 20it would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the Assembly
(ignoring section 108A(2)(e) of the Government of Wales Act 2006 so
far as relating to EU law and retained EU law but including any
provision that could be made only with the consent of a Minister of
25the Crown), or

(b) it meets the conditions in sub-paragraph (2).

(2) The conditions are—

(a) the provision—

(i) amends or revokes subordinate legislation made before exit
30day by the Welsh Ministers or the National Assembly for
Wales constituted by the Government of Wales Act 1998, or

(ii) makes supplementary, incidental, consequential,
transitional, transitory or saving provision in connection
with any such amendment or revocation,

(b) 35the subject-matter of the provision does not go beyond the subject-
matter of the subordinate legislation concerned,

(c) the provision only forms part of the law of England and Wales,

(d) the provision does not confer or remove functions exercisable
otherwise than in relation to Wales or the Welsh zone, and

(e) 40the provision does not modify any enactment so far as the enactment
cannot, by virtue of paragraph 5, 6 or 7 of Schedule 7B to the
Government of Wales Act 2006, be modified by an Act of the
National Assembly for Wales.

11 (1) A provision is within the devolved competence of a Northern Ireland
45department for the purposes of this Part if—

(a) the provision, if it were contained in an Act of the Northern Ireland
Assembly—

European Union (Withdrawal) BillPage 21

(i) would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998),
and

(ii) would not require the consent of the Secretary of State,

(b) 5the provision—

(i) amends or repeals Northern Ireland legislation, and

(ii) would, if it were contained in an Act of the Northern Ireland
Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
10Act 1998) and require the consent of the Secretary of State, or

(c) the provision meets the conditions in sub-paragraph (2).

(2) The conditions are—

(a) the provision—

(i) amends or revokes subordinate legislation made before exit
15day by a Northern Ireland devolved authority, or

(ii) makes supplementary, incidental, consequential,
transitional, transitory or saving provision in connection
with any such amendment or revocation,

(b) the subject-matter of the provision does not go beyond the subject-
20matter of the subordinate legislation concerned,

(c) the provision only forms part of the law of Northern Ireland,

(d) the provision does not confer or remove functions exercisable
otherwise than in or as regards Northern Ireland,

(e) the provision does not modify any enactment so far as the enactment
25cannot, by virtue of section 7 of the Northern Ireland Act 1998, be
modified by an Act of the Northern Ireland Assembly, and

(f) the provision does not deal with, or otherwise relate to, a matter to
which paragraph 22 of Schedule 2, or paragraph 42 of Schedule 3, to
the Northern Ireland Act 1998 applies.

12 30References in paragraphs 9 to 11, in connection with the making of
regulations under this Part, to the subject-matter of any provision or
subordinate legislation are to be read as references to the subject-matter of
the provision or subordinate legislation when the regulations concerned are
made.

35Part 2 Complying with international obligations

Power to comply with international obligations

13 (1) A devolved authority may by regulations make such provision as the
devolved authority considers appropriate to prevent or remedy any breach,
40arising from the withdrawal of the United Kingdom from the EU, of the
international obligations of the United Kingdom.

(2) A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate to prevent or
remedy any breach, arising from the withdrawal of the United Kingdom
45from the EU, of the international obligations of the United Kingdom.

European Union (Withdrawal) BillPage 22

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

(4) But regulations under this Part may not—

(a) make retrospective provision,

(b) 5create a relevant criminal offence,

(c) be made to implement the withdrawal agreement,

(d) confer a power to legislate (other than a power to make rules of
procedure for a court or tribunal), or

(e) amend, repeal or revoke the Human Rights Act 1998 or any
10subordinate legislation made under it.

(5) Sub-paragraph (4)(d) 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.

(6) No regulations may be made under this Part after the end of the period of
15two years beginning with exit day.

(7) Regulations under this Part, so far as made by a devolved authority, are also
subject to paragraphs 14 to 17.

No power to make provision outside devolved competence

14 (1) No regulations may be made under this Part by a devolved authority unless
20every provision of them is within the devolved competence of the devolved
authority.

(2) See paragraphs 18 to 20 for the meaning of “devolved competence” for the
purposes of this Part.

No power to modify retained direct EU legislation etc.

15 (1) 25No 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) No regulations may be made under this Part by a devolved authority which,
when made, are inconsistent with any modification (whether or not in force)
30made 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.

Requirement for consent in certain circumstances

16 (1) No regulations may be made under this Part without the consent of a
35Minister of the Crown by a devolved authority acting alone so far as the
regulations—

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

(b) are for the purpose of preventing or remedying any breach of the
WTO Agreement, or

(c) 40make provision about any quota arrangements or are incompatible
with any such arrangements.

European Union (Withdrawal) BillPage 23

(2) In sub-paragraph (1)(b) “the WTO Agreement” means the agreement
establishing the World Trade Organisation signed at Marrakesh on 15 April
1994 (as modified from time to time).

(3) In sub-paragraph (1)(c) “quota arrangements” means any arrangements for,
5or in connection with, the division of responsibility within the United
Kingdom or an area including the United Kingdom for—

(a) an international obligation, or

(b) any right or other benefit arising from such an obligation,

where the obligation is to achieve a result defined by reference to a quantity
10(whether expressed as an amount, proportion or ratio or otherwise) or (as
the case may be) the benefit is so defined.

Certain requirements for consent, joint exercise or consultation

17 Paragraphs 6 to 8 apply for the purposes of this Part as they apply for the
purposes of Part 1.

15Meaning of devolved competence: Part 2

18 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
Parliament if it were contained in an Act of that Parliament (ignoring
20section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law
and retained EU law), or

(b) it is provision which could be made in other subordinate legislation
by the Scottish Ministers, the First Minister or the Lord Advocate
(ignoring section 57(2) of the Scotland Act 1998 so far as relating to
25EU law and section 57(4) and (5) of that Act).

19 A provision is within the devolved competence of the Welsh Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the Assembly
30(ignoring section 108A(2)(e) of the Government of Wales Act 2006 so
far as relating to EU law and retained EU law but including any
provision that could be made only with the consent of a Minister of
the Crown), or

(b) it is provision which could be made in other subordinate legislation
35by the Welsh Ministers (ignoring section 80(8) of the Government of
Wales Act 2006).

20 A provision is within the devolved competence of a Northern Ireland
department for the purposes of this Part if—

(a) the provision, if it were contained in an Act of the Northern Ireland
40Assembly—

(i) would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998),
and

(ii) would not require the consent of the Secretary of State,

(b) 45the provision—

(i) amends or repeals Northern Ireland legislation, and

European Union (Withdrawal) BillPage 24

(ii) would, if it were contained in an Act of the Northern Ireland
Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
Act 1998) and require the consent of the Secretary of State, or

(c) 5the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority (ignoring
section 24(1)(b) and (3) and (4) of the Northern Ireland Act 1998).

Part 3 Implementing the withdrawal agreement

10Power to implement withdrawal agreement

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

(2) 15A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate for the
purposes of implementing the withdrawal agreement if they consider that
such provision should be in force on or before exit day.

(3) Regulations under this Part may make any provision that could be made by an Act
20of Parliament.

(4) But regulations under this Part may not—

(a) impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) 25confer a power to legislate (other than a power to make rules of
procedure for a court or tribunal),

(e) modify this Act,

(f) modify any subordinate legislation made under this Act unless the
regulations are modifying any subordinate legislation made by the
30devolved authority concerned or are made by a Minister of the
Crown acting jointly with a devolved authority, or

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

(5) Sub-paragraph (4)(d) does not prevent any modification of a power to
35legislate which involves an extension of the power and does not go beyond
the subject-matter of the power.

(6) No regulations may be made under this Part after exit day.

(7) Regulations under this Part, so far as made by a devolved authority, are also
subject to paragraphs 22 to 26.

40No power to make provision outside devolved competence

22 (1) No 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.

European Union (Withdrawal) BillPage 25

(2) In this Part “devolved competence” has the same meaning as in Part 2 (see
paragraphs 18 to 20).

No power to modify retained direct EU legislation etc.

23 (1) No regulations may be made under this Part by a devolved authority which
5modify any retained direct EU legislation or anything which is retained EU
law by virtue of section 4.

(2) No 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) 10any retained direct EU legislation, or

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

No power to confer certain functions relating to EU tertiary legislation

24 No regulations may be made under this Part by a devolved authority which
confer functions which correspond to functions to make EU tertiary
15legislation.

Requirement for consent in certain circumstances

25 (1) No 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 make provision about any quota arrangements or are
20incompatible with any such arrangements.

(2) In sub-paragraph (1) “quota arrangements” means any arrangements for, or
in connection with, the division of responsibility within the United
Kingdom or an area including the United Kingdom for—

(a) an international obligation, or

(b) 25any right or other benefit arising from such an obligation,

where the obligation is to achieve a result defined by reference to a quantity
(whether expressed as an amount, proportion or ratio or otherwise) or (as
the case may be) the benefit is so defined.

Certain requirements for consent, joint exercise or consultation

26 30Paragraphs 6 to 8 apply for the purposes of this Part as they apply for the
purposes of Part 1.

Section 11(4) and (5)

SCHEDULE 3 Further amendments of devolution legislation

Part 1 35Corresponding provision in relation to executive competence

Scotland Act 1998

1 In section 57 of the Scotland Act 1998 (EU law and Convention rights)—

European Union (Withdrawal) BillPage 26

(a) in subsection (2) (no power for members of the Scottish Government
to make subordinate legislation, or otherwise act, incompatibly with
EU law) omit “or with EU law”, and

(b) after subsection (3) insert—

(4) 5A member of the Scottish Government has no power to make,
confirm or approve any subordinate legislation so far as the
legislation modifies retained EU law.

(5) Subsection (4) does not apply—

(a) so far as the modification would be within the
10legislative competence of the Parliament if it were
included in an Act of the Scottish Parliament,

(b) to the making of regulations under Schedule 2 or 4 to
the European Union (Withdrawal) Act 2017, or

(c) so far as Her Majesty may by Order in Council
15provide.”

Government of Wales Act 2006

2 In section 80 of the Government of Wales Act 2006 (EU law) for subsection
(8) (no power for the First Minister, the Counsel General or the Welsh
Ministers to make, confirm or approve subordinate legislation, or otherwise
20act, incompatibly with EU law etc.) substitute—

(8) The Welsh Ministers have no power to make, confirm or approve
any subordinate legislation so far as the legislation modifies retained
EU law.

(8A) Subsection (8) does not apply—

(a) 25so far as the modification would be within the legislative
competence of the Assembly if it were included in an Act of
the Assembly,

(b) to the making of regulations under Schedule 2 or 4 to the
European Union (Withdrawal) Act 2017, or

(c) 30so far as Her Majesty may by Order in Council provide.

(8B) No recommendation is to be made to Her Majesty in Council to make
an Order in Council under subsection (8A) unless a draft of the
statutory instrument containing the Order in Council has been laid
before, and approved by a resolution of, each House of Parliament
35and the Assembly.”

Northern Ireland Act 1998

3 In section 24 of the Northern Ireland Act 1998 (EU law, Convention rights
etc.)—

(a) omit subsection (1)(b) (no power for the First Minister, the deputy
40First Minister, a Northern Ireland Minister or a Northern Ireland
department to make, confirm or approve subordinate legislation, or
otherwise act, incompatibly with EU law), and

(b) after subsection (2) insert—

(3) A Minister or Northern Ireland department has no power to
45make, confirm or approve any subordinate legislation so far
as the legislation modifies retained EU law.

European Union (Withdrawal) BillPage 27

(4) Subsection (3) does not apply—

(a) so far as the modification would be within the
legislative competence of the Assembly if it were
included in an Act of the Assembly,

(b) 5to the making of regulations under Schedule 2 or 4 to
the European Union (Withdrawal) Act 2017, or

(c) so far as Her Majesty may by Order in Council
provide.

(5) No recommendation shall be made to Her Majesty to make
10an Order in Council under subsection (4) unless a draft of the
Order—

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

(b) has been laid before and approved by resolution of
15the Assembly.”

Part 2 Other amendments of devolution legislation

Scotland Act 1998

4 The Scotland Act 1998 is amended as follows.

5 20In section 2 (ordinary general elections), in subsection (2A), omit paragraph
(b) and the “or” before it.

6 In section 12 (power of the Scottish Ministers to make provision about
elections), in subsection (4)(a)—

(a) omit “or the European Parliamentary Elections Act 2002”, and

(b) 25omit “, European Parliamentary elections”.

7 (1) Section 12A (power of the Secretary of State to make provision about
elections) is amended as follows.

(2) In subsection (2)—

(a) after paragraph (a) insert “and”, and

(b) 30omit paragraph (c) and the “and” before it.

(3) In subsection (3), omit paragraph (b) and the “and” before it.

(4) In subsection (5)(a)—

(a) omit “or the European Parliamentary Elections Act 2002”, and

(b) omit “, European Parliamentary elections”.

8 35In section 32 (submission of Bills for Royal Assent), in subsection (3), omit
paragraph (b) and the “or” before it.

9 Omit section 34 (ECJ references).

10 (1) Section 36 (stages of Bills) is amended as follows.

(2) In subsection (4), omit paragraph (b) but not the “or” at the end of it.

(3) 40In subsection (5)(a), omit “, (b)”.

11 (1) Section 57 (EU law and Convention rights) is amended as follows.

European Union (Withdrawal) BillPage 28

(2) In the heading—

(a) omit “EU law and”, and

(b) after “rights” insert “and retained EU law”.

(3) Omit subsection (1).

12 (1) 5Section 80D (Scottish taxpayers) is amended as follows.

(2) In subsection (4)—

(a) insert “or” at the end of paragraph (a), and

(b) omit paragraph (b) and the “or” at the end of it.

(3) In subsection (4B), for “any of paragraphs (a) to (c)” substitute “paragraph
10(a) or (c)”.

13 In section 80DA (Scottish taxpayers: Welsh parliamentarians), in subsection
(2)(a), for “any of paragraphs (a) to (c)” substitute “paragraph (a) or (c)”.

14 (1) Section 82 (limits on salaries of members of the Parliament) is amended as
follows.

(2) 15In subsection (1)—

(a) insert “or” at the end of paragraph (za), and

(b) omit paragraph (b) and the “or” before it.

(3) In subsection (2)(b), for “(1)(za), (a) or (b)” substitute “(1)(za) or (a)”.

15 (1) Section 106 (power to adapt functions) is amended as follows.

(2) 20In subsection (5), for “an obligation under EU law” substitute “a retained EU
obligation”.

(3) Omit subsection (7).

16 In section 119 (Consolidated Fund etc.), omit subsection (4).

17 (1) Section 126 (interpretation) is amended as follows.

(2) 25Omit subsection (9).

(3) In subsection (10), omit “EU law or”.

18 In section 127 (index of defined expressions), omit the entry for EU law.

19 (1) Schedule 4 (enactments etc. protected from modification) is amended as
follows.

(2) 30In paragraph 1(2)—

(a) omit paragraph (c), and

(b) after paragraph (f) insert ,

(g) the European Union (Withdrawal) Act 2017 (other
than paragraphs 20 to 23 of Schedule 8 to that Act and
35any regulations made under that Act)”.

(3) Omit paragraph 13(1)(a).

20 (1) Paragraph 1 of Schedule 6 (devolution issues) is amended as follows.

(2) In the first paragraph (d) for “with EU law” substitute “in breach of the
restriction in section 57(4)”.

European Union (Withdrawal) BillPage 29

(3) In paragraph (e), omit “or with EU law”.

(4) In the second sentence for the words from “the compatibility” to the end
substitute “a compatibility issue (within the meaning given by section
288ZA(2) of the Criminal Procedure (Scotland) Act 1995)”.

21 (1) 5The table in paragraph 1(2) of Schedule 7 (procedure for subordinate
legislation) is amended as follows.

(2) After the entry for section 18(5) insert—

“Section 29(4C) Type A”.

(3) After the entry for section 56(2) insert—

“Section 57(5)(c) 10Type A”.

22 In Schedule 8 (modifications of enactments), omit paragraph 15 and the
heading before it.

Government of Wales Act 2006

23 The Government of Wales Act 2006 is amended as follows.

24 15In section 3 (ordinary general elections), in subsection (1A), omit paragraph
(b) and the “or” before it.

25 (1) Section 13A (power of the Secretary of State to make provision about the
combination of polls) is amended as follows.

(2) In subsection (2)—

(a) 20insert “and” at the end of paragraph (a), and

(b) omit paragraph (c) and the “and” before it.

(3) In subsection (3), omit paragraph (b) and the “and” before it.

26 (1) Section 21 (limit on salaries of Assembly members) is amended as follows.

(2) In subsection (1)—

(a) 25insert “or” at the end of paragraph (za), and

(b) omit paragraph (b) and the “or” before it.

(3) In subsection (2)(b), for “(1)(za), (a), or (b)” substitute “(1)(za) or (a)”.

27 In section 58A (executive ministerial functions), in subsection (4)(d), for
“obligations under EU law” substitute “retained EU obligations”.

28 30Omit section 58B (implementation of EU law: general).

29 (1) Section 59 (implementation of EU law: designation of Welsh Ministers etc.)
is amended as follows.

(2) For the heading substitute “Fees and charges in relation to international
law”.

(3) 35Omit subsections (1) to (4).