European Union (Withdrawal) Bill (HC Bill 5)

(2) may not be made unless a draft of the instrument has been laid before,
and approved by a resolution of, the National Assembly for Wales.

(7) Any other statutory instrument containing regulations under Part 1 of
Schedule 2 of the Welsh Ministers is (if a draft of the instrument has not been
5laid before, and approved by a resolution of, the National Assembly for
Wales) subject to annulment in pursuance of a resolution of the Assembly.

(8) Regulations under Part 1 of Schedule 2 of a Northern Ireland department
which contain provision falling within sub-paragraph (2) may not be made
unless a draft of the regulations has been laid before, and approved by a
10resolution of, the Northern Ireland Assembly.

(9) Any other regulations under Part 1 of Schedule 2 of a Northern Ireland
department are (if a draft of the regulations has not been laid before, and
approved by a resolution of, the Northern Ireland Assembly) subject to
negative resolution within the meaning of section 41(6) of the Interpretation
15Act (Northern Ireland) 1954 as if they were a statutory instrument within the
meaning of that Act.

(10) This paragraph—

(a) does not apply to regulations to which paragraph 2 applies, and

(b) is subject to paragraph 3.

20Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly

2 (1) This paragraph applies to regulations under Part 1 of Schedule 2 of a
Minister of the Crown acting jointly with a devolved authority.

(2) The procedure provided for by sub-paragraph (3) or (4) applies in relation to
regulations to which this paragraph applies as well as any other procedure
25provided for by this paragraph which is applicable in relation to the
regulations concerned.

(3) A statutory instrument containing regulations to which this paragraph
applies which contain provision falling within paragraph 1(2) may not be
made unless a draft of the instrument has been laid before, and approved by
30a resolution of, each House of Parliament.

(4) Any other statutory instrument containing regulations to which this
paragraph applies is (if a draft of the instrument has not been laid before,
and approved by a resolution of, each House of Parliament) subject to
annulment in pursuance of a resolution of either House of Parliament.

(5) 35Regulations to which this paragraph applies which are made jointly with the
Scottish Ministers and contain provision falling within paragraph 1(2) are
subject to the affirmative procedure.

(6) Any other regulations to which this paragraph applies which are made
jointly with the Scottish Ministers are (if they have not been subject to the
40affirmative procedure) subject to the negative procedure.

(7) Section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010
(asp 10) (affirmative procedure) applies in relation to regulations to which
sub-paragraph (5) or (6) applies and which are subject to the affirmative
procedure as it applies in relation to devolved subordinate legislation
45(within the meaning of Part 2 of that Act) which is subject to the affirmative

procedure (but as if references to a Scottish statutory instrument were
references to a statutory instrument).

(8) Sections 28(2), (3) and (8) and 31 of the Interpretation and Legislative Reform
(Scotland) Act 2010 (asp 10)2010 (asp 10) (negative procedure etc.) apply in relation to
5regulations to which sub-paragraph (6) applies and which are subject to the
negative procedure as they apply in relation to devolved subordinate
legislation (within the meaning of Part 2 of that Act) which is subject to the
negative procedure (but as if references to a Scottish statutory instrument
were references to a statutory instrument).

(9) 10Section 32 of the Interpretation and Legislative Reform (Scotland) Act 2010
(laying) applies in relation to the laying before the Scottish Parliament of a
statutory instrument containing regulations to which sub-paragraph (5) or
(6) applies as it applies in relation to the laying before that Parliament of a
Scottish statutory instrument (within the meaning of Part 2 of that Act).

(10) 15A statutory instrument containing regulations to which this paragraph
applies which are made jointly with the Welsh Ministers and contain
provision falling within paragraph 1(2) may not be made unless a draft of
the instrument has been laid before, and approved by a resolution of, the
National Assembly for Wales.

(11) 20Any other statutory instrument containing regulations to which this
paragraph applies which are made jointly with the Welsh Ministers is (if a
draft of the instrument has not been laid before, and approved by a
resolution of, the National Assembly for Wales) subject to annulment in
pursuance of a resolution of the Assembly.

(12) 25Regulations to which this paragraph applies which are made jointly with a
Northern Ireland department and contain provision falling within
paragraph 1(2) may not be made unless a draft of the regulations has been
laid before, and approved by a resolution of, the Northern Ireland
Assembly.

(13) 30Any other regulations to which this paragraph applies which are made
jointly with a Northern Ireland department are (if a draft of the regulations
has not been laid before, and approved by a resolution of, the Northern
Ireland Assembly) subject to negative resolution within the meaning of
section 41(6) of the Interpretation Act (Northern Ireland) 1954 as if they were
35a statutory instrument within the meaning of that Act.

(14) If in accordance with sub-paragraph (4), (6), (11) or (13)—

(a) either House of Parliament resolves that an address be presented to
Her Majesty praying that an instrument be annulled, or

(b) a relevant devolved legislature resolves that an instrument be
40annulled,

nothing further is to be done under the instrument after the date of the
resolution and Her Majesty may by Order in Council revoke the instrument.

(15) In sub-paragraph (14) “relevant devolved legislature” means—

(a) in the case of regulations made jointly with the Scottish Ministers, the
45Scottish Parliament,

(b) in the case of regulations made jointly with the Welsh Ministers, the
National Assembly for Wales, and

(c) in the case of regulations made jointly with a Northern Ireland
department, the Northern Ireland Assembly.

(16) Sub-paragraph (14) does not affect the validity of anything previously done
under the instrument or prevent the making of a new instrument.

(17) Sub-paragraphs (14) and (15) apply in place of provision made by any other
enactment about the effect of such a resolution.

5Scrutiny procedure in certain urgent cases

3 (1) Sub-paragraph (2) applies to—

(a) a statutory instrument to which paragraph 1(1) applies, or

(b) a statutory instrument to which paragraph 1(3) applies which would
not otherwise be made without a draft of the instrument being laid
10before, and approved by a resolution of, each House of Parliament.

(2) The instrument may be made without a draft of the instrument being laid
before, and approved by a resolution of, each House of Parliament if it
contains a declaration that the Minister of the Crown concerned is of the
opinion that, by reason of urgency, it is necessary to make the regulations
15without a draft being so laid and approved.

(3) After an instrument is made in accordance with sub-paragraph (2), it must
be laid before each House of Parliament.

(4) Regulations contained in an instrument made in accordance with sub-
paragraph (2) cease to have effect at the end of the period of one month
20beginning with the day on which the instrument is made unless, during that
period, the instrument is approved by a resolution of each House of
Parliament.

(5) In calculating the period of one month, no account is to be taken of any time
during which—

(a) 25Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) affect the validity of anything previously done under the
30regulations, or

(b) prevent the making of new regulations.

Part 2 Scrutiny of other powers under Act

Power to enable challenges to validity of retained EU law

4 (1) 35A statutory instrument containing regulations under paragraph 1(2)(b) of
Schedule 1 may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.

(2) This paragraph is subject to paragraph 11.

Power to implement international obligations

5 (1) 40A statutory instrument containing regulations under section 8 which
contain provision falling within sub-paragraph (2) may not be made unless

a draft of the instrument has been laid before, and approved by a resolution
of, each House of Parliament.

(2) Provision falls within this sub-paragraph if it—

(a) establishes a public authority in the United Kingdom,

(b) 5provides for any function of an EU entity or public authority in a
member State to be exercisable instead by a public authority in the
United Kingdom established by regulations under section 7, 8 or 9 or
Schedule 2,

(c) provides for any function of an EU entity or public authority in a
10member State of making an instrument of a legislative character to be
exercisable instead by a public authority in the United Kingdom,

(d) imposes, or otherwise relates to, a fee or charge in respect of a
function exercisable by a public authority in the United Kingdom,

(e) creates, or widens the scope of, a criminal offence, or

(f) 15creates or amends a power to legislate.

(3) Any other statutory instrument containing regulations under section 8 is (if
a draft of the instrument has not been laid before, and approved by a
resolution of, each House of Parliament) subject to annulment in pursuance
of a resolution of either House of Parliament.

(4) 20Paragraphs 1(4) to (10)(a) and 2 apply to regulations under Part 2 of
Schedule 2 as they apply to regulations under Part 1 of that Schedule except
that any reference to provision falling within paragraph 1(2) is to be read as
a reference to any provision falling within sub-paragraph (2) above.

(5) This paragraph is subject to paragraph 11.

25Power to implement withdrawal agreement

6 (1) A statutory instrument containing regulations under section 9 which
contain provision falling within sub-paragraph (2) may not be made unless
a draft of the instrument has been laid before, and approved by a resolution
of, each House of Parliament.

(2) 30Provision falls within this sub-paragraph if it—

(a) establishes a public authority in the United Kingdom,

(b) provides for any function of an EU entity or public authority in a
member State to be exercisable instead by a public authority in the
United Kingdom established by regulations under section 7, 8 or 9 or
35Schedule 2,

(c) provides for any function of an EU entity or public authority in a
member State of making an instrument of a legislative character to be
exercisable instead by a public authority in the United Kingdom,

(d) imposes, or otherwise relates to, a fee in respect of a function
40exercisable by a public authority in the United Kingdom,

(e) creates, or widens the scope of, a criminal offence,

(f) creates or amends a power to legislate, or

(g) amends this Act.

(3) Any other statutory instrument containing regulations under section 9 is (if
45a draft of the instrument has not been laid before, and approved by a
resolution of, each House of Parliament) subject to annulment in pursuance
of a resolution of either House of Parliament.

(4) Paragraphs 1(4) to (10)(a) and 2 apply to regulations under Part 3 of
Schedule 2 as they apply to regulations under Part 1 of that Schedule except
that any reference to provision falling within paragraph 1(2) is to be read as
a reference to any provision falling within sub-paragraph (2) above.

(5) 5This paragraph is subject to paragraph 11.

Powers in connection with fees and charges

7 (1) A statutory instrument containing regulations of a Minister of the Crown
under paragraph 1 of Schedule 4 which contain provision falling within sub-
paragraph (2) may not be made unless a draft of the instrument has been laid
10before, and approved by a resolution of, each House of Parliament.

(2) Provision falls within this sub-paragraph if it—

(a) imposes a fee or charge in respect of a function exercisable by a
public authority (unless it is modifying a fee or charge already
payable in respect of that function under regulations under
15paragraph 1 of Schedule 4), or

(b) confers a power as mentioned in sub-paragraph (3)(c) of that
paragraph.

(3) Any other statutory instrument containing regulations under Schedule 4 of
a Minister of the Crown is (if a draft of the instrument has not been laid
20before, and approved by a resolution of, each House of Parliament) subject
to annulment in pursuance of a resolution of either House of Parliament.

(4) Paragraphs 1(4) to (10)(a) and 2 apply to regulations under Schedule 4 as
they apply to regulations under Part 1 of Schedule 2 except that any
reference to provision falling within paragraph 1(2) is to be read as a
25reference to any provision made under paragraph 1 of Schedule 4 falling
within sub-paragraph (2) above.

(5) This paragraph is subject to paragraph 11.

Power to make provision about publication and rules of evidence

8 A statutory instrument containing regulations under paragraph 4 of
30Schedule 5 may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.

Power to make consequential provision

9 A statutory instrument containing regulations under section 17(1) is subject
to annulment in pursuance of a resolution of either House of Parliament.

35Power to make transitional, transitory or saving provision

10 (1) Sub-paragraph (2) applies if a Minister of the Crown who is to make
regulations under section 17(5) considers that—

(a) it is not appropriate for the statutory instrument containing them to
be subject to no parliamentary procedure, and

(b) 40it is appropriate for that statutory instrument to be subject to the
parliamentary procedure in sub-paragraph (2).

(2) The statutory instrument containing the regulations may not be made unless
a draft of the instrument has been laid before, and approved by a resolution
of, each House of Parliament.

(3) Sub-paragraph (4) applies if a Minister of the Crown who is to make
5regulations under section 17(5) considers that—

(a) it is not appropriate for the statutory instrument containing them to
be subject to no parliamentary procedure, and

(b) it is appropriate for that statutory instrument to be subject to the
parliamentary procedure in sub-paragraph (4).

(4) 10The statutory instrument containing the regulations is subject to annulment
in pursuance of a resolution of either House of Parliament.

Scrutiny procedure in certain urgent cases

11 (1) Sub-paragraph (2) applies to—

(a) a statutory instrument to which paragraph 4(1), 5(1), 6(1) or 7(1)
15applies, or

(b) a statutory instrument to which paragraph 5(3), 6(3) or 7(3) applies
which would not otherwise be made without a draft of the
instrument being laid before, and approved by a resolution of, each
House of Parliament.

(2) 20The instrument may be made without a draft of the instrument being laid
before, and approved by a resolution of, each House of Parliament if it
contains a declaration that the Minister of the Crown concerned is of the
opinion that, by reason of urgency, it is necessary to make the regulations
without a draft being so laid and approved.

(3) 25After an instrument is made in accordance with sub-paragraph (2), it must
be laid before each House of Parliament.

(4) Regulations contained in an instrument made in accordance with sub-
paragraph (2) cease to have effect at the end of the period of one month
beginning with the day on which the instrument is made unless, during that
30period, the instrument is approved by a resolution of each House of
Parliament.

(5) In calculating the period of one month, no account is to be taken of any time
during which—

(a) Parliament is dissolved or prorogued, or

(b) 35either House of Parliament is adjourned for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) affect the validity of anything previously done under the
regulations, or

(b) 40prevent the making of new regulations.

Part 3 General provision about powers under Act

Scope and nature of powers: general

12 (1) Any power to make regulations under this Act—

(a) 5so far as exercisable by a Minister of the Crown or by a Minister of
the Crown acting jointly with a devolved authority, is exercisable by
statutory instrument,

(b) so far as exercisable by the Welsh Ministers or by the Welsh Ministers
acting jointly with a Minister of the Crown, is exercisable by
10statutory instrument, and

(c) so far as exercisable by a Northern Ireland department (other than
when acting jointly with a Minister of the Crown), is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979 (SI 1979/1573 (NI 12)SI 1979/1573 (NI 12)) (and not by statutory
15instrument).

(2) For regulations made under this Act by the Scottish Ministers, see also
section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010
(asp 10) (Scottish statutory instruments).

13 Any power to make regulations under this Act—

(a) 20may be exercised so as to—

(i) modify retained EU law, or

(ii) make different provision for different cases or descriptions of
case, different circumstances, different purposes or different
areas, and

(b) 25includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision (including provision re-
stating any retained EU law in a clearer or more accessible way).

14 The fact that a power to make regulations is conferred by this Act does not
affect the extent of any other power to make regulations under this Act.

30Scope of consequential and transitional powers

15 (1) The fact that anything continues to be, or forms part of, domestic law by
virtue of any provision of sections 2 to 6 or Schedule 1 does not prevent it
from being modified by regulations made under section 17(1) in
consequence of any other provision made by or under this Act.

(2) 35Accordingly, any retained EU law may, for example, be modified by
regulations made under section 17(1) in consequence of the repeal of any
enactment contained in the European Communities Act 1972.

(3) The power to make regulations under section 17(5) includes the power to
make transitional, transitory or saving provision in connection with—

(a) 40the repeal of any enactment contained in the European Communities
Act 1972, or

(b) the withdrawal of the United Kingdom from the EU,

which is additional to that made by any provision of sections 2 to 6 or
Schedule 1 or alters its effect in particular cases or descriptions of case.

(4) The power to make regulations under section 17(1) includes the power to
make transitional, transitory or saving provision which—

(a) is in connection with any repeal or revocation made by any such
regulations of an enactment in consequence of—

(i) 5the repeal of any enactment contained in the European
Communities Act 1972, or

(ii) the withdrawal of the United Kingdom from the EU, and

(b) is additional to that made by any provision of sections 2 to 6 or
Schedule 1 or alters its effect in particular cases or descriptions of
10case.

(5) Provision of the kind mentioned in sub-paragraph (3) or (4) may (among
other things) include further provision treating any provision of that kind as
retained EU law for particular purposes or all purposes.

Scope of appointed day powers

16 15Any power of a Minister of the Crown under this Act to appoint a day
includes a power to appoint a time on that day if the Minister considers it
appropriate to do so.

Effect of certain provisions in Schedule 8 on scope of powers

17 The modifications made by Part 1 of Schedule 8 and paragraphs 7 to 11 and
2020 to 23 of that Schedule do not prevent or otherwise limit the making of
different provision, in particular cases or descriptions of case, in regulations
under section 17(1) or in any other regulations under this Act.

Disapplication of certain review provisions

18 Section 28 of the Small Business, Enterprise and Employment Act 2015 (duty
25to review regulatory provisions in secondary legislation) does not apply in
relation to any power to make regulations conferred by this Act.

Hybrid instruments

19 If an instrument, or a draft of an instrument, containing regulations under
this Act would, apart from this paragraph, be treated as a hybrid instrument
30for the purposes of the standing orders of either House of Parliament, it is to
proceed in that House as if it were not a hybrid instrument.

Procedure on re-exercise of certain powers

20 (1) An instrument to which paragraph 1(1) or (3), 1(4) or (5), 1(6) or (7), 1(8) or
(9), 2(3) or (4), 2(5) or (6), 2(10) or (11), 2(12) or (13), 3(2), 5(1) or (3), 6(1) or
35(3), 7(1) or (3), 10(2) or (4) or 11(2) applies which revokes, amends or re-
enacts any such instrument may (in spite of section 14 of the Interpretation
Act 1978) be subject to a different procedure under this Schedule from the
procedure to which the instrument containing the original regulations was
subject or, in the case of regulations under section 17(5), no procedure.

(2) 40The references in sub-paragraph (1) to paragraph 1(4) or (5), 1(6) or (7), 1(8)
or (9), 2(3) or (4), 2(5) or (6), 2(10) or (11) or 2(12) or (13) include references to
those provisions as applied by paragraph 5(4), 6(4) or 7(4).

Combinations of instruments

21 (1) Sub-paragraph (2) applies to a statutory instrument containing regulations
under this Act which is subject to a procedure before Parliament that
requires the approval of the instrument in draft before it is made or its
5approval after it is made.

(2) The statutory instrument may also include regulations under this Act or
another enactment which are made by statutory instrument which is subject
to a procedure before Parliament that provides for the annulment of the
instrument after it has been made.

(3) 10Where regulations are included as mentioned in sub-paragraph (2), the
procedure applicable to the statutory instrument is the procedure
mentioned in sub-paragraph (1) and not the procedure mentioned in sub-
paragraph (2).

(4) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
15containing regulations under this Act which is subject to a procedure before
the National Assembly for Wales as they apply in relation to a statutory
instrument containing regulations under this Act which is subject to a
procedure before Parliament but as if the references to Parliament were
references to the National Assembly for Wales.

(5) 20Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
in relation to a statutory instrument but as if the references to Parliament
were references to the Northern Ireland Assembly.

(6) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under this Act which is subject to a procedure before
25the Scottish Parliament, the National Assembly for Wales or the Northern
Ireland Assembly as well as a procedure before Parliament as they apply to
a statutory instrument containing regulations under this Act which is subject
to a procedure before Parliament but as if the references to Parliament were
references to Parliament and the Scottish Parliament, the National Assembly
30for Wales or (as the case may be) the Northern Ireland Assembly.

(7) This paragraph does not prevent the inclusion of other regulations in a
statutory instrument or statutory rule which contains regulations under this
Act.

Section 17(4) and (6)

SCHEDULE 8 35Consequential, transitional, transitory and saving provision

Part 1 General consequential provision

Existing ambulatory references to retained direct EU legislation

1 (1) Any reference which, immediately before exit day—

(a) 40exists in—

(i) any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
provision of the EEA agreement which is to form part of
domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
5paragraph (i) or (ii), and

(b) is a reference to (as it has effect from time to time) any EU regulation,
EU decision, EU tertiary legislation or provision of the EEA
agreement which is to form part of domestic law by virtue of section
3,

10is to be read, on or after exit day, as a reference to the EU regulation, EU
decision, EU tertiary legislation or provision of the EEA agreement as it
forms part of domestic law by virtue of section 3 and, unless the contrary
intention appears, as modified by domestic law from time to time.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
15power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) continues to be part of domestic law by virtue of section 2, and

(b) is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) 20Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Other existing ambulatory references

2 (1) Any reference which—

(a) exists, immediately before exit day, in—

(i) 25any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
provision of the EEA agreement which is to form part of
domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
30paragraph (i) or (ii),

(b) is not a reference to which paragraph 1(1) applies, and

(c) is, immediately before exit day, a reference to (as it has effect from
time to time) any of the EU Treaties, any EU instrument or any other
document of an EU entity,

35is to be read, on or after exit day, as a reference to the EU Treaty, instrument
or document as it has effect immediately before exit day.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) 40continues to be part of domestic law by virtue of section 2, and

(b) is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.