European Union (Withdrawal) Bill (HC Bill 5)

European Union (Withdrawal) BillPage 50

Existing powers to make subordinate legislation

3 (1) Any power to make, confirm or approve subordinate legislation which was
conferred before exit day is to be read, on or after exit day and so far as the
context permits or requires, as being capable of being exercised to modify
5(or, as the case may be, result in the modification of) any retained direct EU
legislation.

(2) Any subordinate legislation modifying any retained direct EU legislation
which is, or is to be, made, confirmed or approved by virtue of sub-
paragraph (1) is to be subject to the same procedure (if any) before
10Parliament, the Scottish Parliament, the National Assembly for Wales or the
Northern Ireland Assembly as would be the case for that legislation if it were
modifying other subordinate legislation.

(3) Any power to make, confirm or approve subordinate legislation which,
immediately before exit day, is subject to an implied restriction that it is
15exercisable only compatibly with EU law is to be read on or after exit day
without that restriction or any corresponding restriction in relation to
compatibility with retained EU law.

(4) Sub-paragraphs (1) to (3)—

(a) do not apply so far as section 57(4) of the Scotland Act 1998, section
2080(8) of the Government of Wales Act 2006 or section 24(3) of the
Northern Ireland Act 1998 applies, and

(b) are subject to any other provision made by or under this Act or any
other enactment.

Review provisions in existing subordinate legislation

4 (1) 25In carrying out a review of a provision of subordinate legislation on or after
exit day (whether under provision made in accordance with section 28 of the
Small Business, Enterprise and Employment Act 2015 or otherwise), a
person is not required, by any pre-exit enactment, to have regard to how any
former EU obligation is implemented elsewhere than in the United
30Kingdom.

(2) In this paragraph—

  • “former EU obligation” means an obligation by which the United
    Kingdom is, as a result of the United Kingdom’s withdrawal from
    the EU, no longer bound at the time of the review,

  • 35“pre-exit enactment” means an Act passed, or subordinate legislation
    made, before exit day, and

  • “subordinate legislation” does not include an instrument made under
    an Act of the Scottish Parliament, Northern Ireland legislation or a
    Measure or Act of the National Assembly for Wales.

40Future powers to make subordinate legislation

5 (1) Any power to make, confirm or approve subordinate legislation which is
conferred on or after exit day may, so far as applicable and unless the
contrary intention appears, be exercised so as to modify (or, as the case may
be, result in the modification of) any retained direct EU legislation.

European Union (Withdrawal) BillPage 51

(2) Sub-paragraph (1) does not apply so far as section 57(4) of the Scotland Act
1998, section 80(8) of the Government of Wales Act 2006 or section 24(3) of
the Northern Ireland Act 1998 applies.

Part 2 5Specific consequential provision

Finance Act 1973

6 In section 56 of the Finance Act 1973 (charges for services etc. by
Government departments), in subsection (1), omit “any EU obligation or”.

Interpretation Act 1978

7 10The Interpretation Act 1978 is amended as follows.

8 In section 21(1) (meaning of “subordinate legislation”) after “any Act” insert
“or made or to be made on or after exit day under any retained direct EU
legislation”.

9 After section 23 (application to other instruments) insert—

23ZA 15Retained direct EU legislation

(1) The provisions of this Act (except sections 1 to 4, 13 and 19(2)) apply,
so far as applicable and unless the contrary intention appears, to any
retained direct EU legislation so far as it—

(a) is amended by an Act, subordinate legislation or devolution
20legislation, and

(b) is not subordinate legislation,

as they apply to an Act passed at the corresponding time.

(2) In their application by virtue of subsection (1)—

(a) section 10 has effect as if the reference to the passing of the
25Act were a reference to the corresponding time,

(b) section 11 has effect as if the second reference to an Act
included a reference to the retained direct EU legislation so
far as unamended (as well as a reference to that legislation so
far as amended), and

(c) 30section 16(1) has effect as if the reference to the repealing Act
not being passed were a reference to the repeal not having
been made.

(3) References in this Act to the repeal of an enactment are to be read, in
the case of an enactment which is retained direct EU legislation, as
35references to the revocation of the enactment.

(4) In Schedule 1—

(a) in the definition of “Commencement”, the references to an
enactment do not include any retained direct EU legislation
other than—

(i) 40any such legislation to which subsection (1) applies or

(ii) any instrument made on or after exit day under any
retained direct EU legislation, and

European Union (Withdrawal) BillPage 52

(b) in the definitions of “The Corporation Tax Acts” and “The
Income Tax Acts”, the references to an enactment do not
include any retained direct EU legislation.

(5) For the application of this Act to retained direct EU legislation which
5is subordinate legislation, see section 23(1) and (2).

(6) In this section—

  • “corresponding time” means the time when the amending Act,
    subordinate legislation or devolution legislation was passed
    or (as the case may be) made, and

  • 10“devolution legislation” means—

    (a)

    an Act of the Scottish Parliament,

    (b)

    a Measure or Act of the National Assembly for Wales,

    (c)

    Northern Ireland legislation (for the meaning of
    which see section 24(5)), or

    (d)

    15an instrument made under anything falling within
    paragraph (a), (b) or (c).”

10 In section 24 (application to Northern Ireland), in subsection (4)—

(a) omit “and related expressions”,

(b) after “Corporation Tax Acts;” insert—

  • 20“E.C.S.C. Treaty;

  • E.E.C. Treaty;”,

(c) after “state;” insert—

  • “Entry date;

  • The EU or the European Union;

  • 25EU institution;

  • EU instrument;

  • Euratom, Economic Community and Coal and Steel
    Community;

  • Euratom Treaty;

  • 30European Court;”,

(d) after “Income Tax Acts;” insert—

  • “Member (in the expression “member State”);”, and

(e) after “The Tax Acts” insert ;

  • The Treaties or the EU Treaties”.

11 35In Schedule 1 (words and expressions defined)—

(a) omit ““The EU” or “the EU Treaties” and other expressions defined
by section 1 of and Schedule 1 to the European Communities Act
1972 have the meanings prescribed by that Act.”,

(b) omit the definition of “EEA agreement”,

(c) 40omit the definition of “EEA state”,

(d) in the definition of “enactment”, before “does” insert “includes any
retained direct EU legislation but”, and

(e) at the end insert—

“Definitions relating to the EU and the United Kingdom’s withdrawal

45“The Communities” means Euratom, the Economic
Community and the Coal and Steel Community, but a

European Union (Withdrawal) BillPage 53

reference to any or all of those Communities is to be treated
as being or including (as the context requires) a reference
to the EU.

“E.C.S.C. Treaty” means the Treaty establishing the
5European Coal and Steel Community, signed at Paris on 18
April 1951.

EEA agreement” means the agreement on the European
Economic Area signed at Oporto on 2 May 1992, together
with the Protocol adjusting that Agreement signed at
10Brussels on 17 March 1993, as modified or supplemented
from time to time, but does not include any retained direct
EU legislation. [8 January 2007]

EEA state”, in relation to a time, means—

(a) a state which at that time is a member State, or

(b) 15any other state which at that time is a party to the
EEA agreement. [8 January 2007]

“E.E.C. Treaty” means the Treaty establishing the
European Economic Community, signed at Rome on 25
March 1957.

20“Entry date” means the date on which the United Kingdom
became a member of the Communities (which neither
includes nor is a reference to the EU).

“The EU” or “the European Union” means the European
Union, being the Union established by the Treaty on
25European Union signed at Maastricht on 7 February 1992
(as amended by any later Treaty); and includes, so far as
the context permits or requires, Euratom.

EU institution” means any institution of the EU.

EU instrument” means any instrument issued by an EU
30institution other than any retained direct EU legislation.

“Euratom”, “Economic Community” and “Coal and Steel
Community” mean respectively the European Atomic
Energy Community, the European Economic Community
and the European Coal and Steel Community (but see the
35definition of “the Communities” for provision as to the
construction of references to those Communities).

“Euratom Treaty” means the Treaty establishing the
European Atomic Energy Community, signed at Rome on
25 March 1957.

40“European Court” means the Court of Justice of the
European Union.

“Exit day” (and related expressions) have the same
meaning as in the European Union (Withdrawal) Act 2017
(see section 14(1) and (2) of that Act).

45“Member”, in the expression “member State”, refers to
membership of the EU.

European Union (Withdrawal) BillPage 54

“Retained EU law” and “retained direct EU legislation”
have the same meaning as in the European Union
(Withdrawal) Act 2017 (see sections 6(7) and 14(1) of that
Act).

5“Retained EU obligation” means an obligation that—

(a) was created or arose by or under the EU Treaties
before exit day, and

(b) forms part of retained EU law,

as modified from time to time.

10“The Treaties” or “the EU Treaties” means the Treaties or
EU Treaties, within the meaning given by section 1(2) of
the European Communities Act 1972 as that Act had effect
immediately before its repeal by section 1 of the European
Union (Withdrawal) Act 2017, as at immediately before
15exit day.”

European Economic Area Act 1993

12 The European Economic Area Act 1993 is amended as follows.

13 Omit section 1 (EEA agreement to be an EU Treaty).

14 (1) Section 2 (consistent application of law to the whole of the EEA) is amended
20as follows.

(2) In subsection (3)—

(a) in paragraph (a), after “Act” insert “as at immediately before exit
day”, and

(b) omit paragraph (b), the “or” before that paragraph and the words
25after that paragraph.

(3) After that subsection insert—

(3A) This section is subject to any amendment, repeal, revocation or other
modification of retained EU law on or after exit day.”

(4) Omit subsections (4) to (6).

15 (1) 30Section 3 (general implementation of the EEA agreement) is amended as
follows.

(2) In subsection (3)—

(a) in paragraph (a), after “Act” insert “as at immediately before exit
day”, and

(b) 35omit paragraph (b), the “or” before that paragraph and the words
after that paragraph.

(3) After subsection (4) insert—

(4A) This section is subject to any amendment, repeal, revocation or other
modification of retained EU law on or after exit day.”

16 40Omit section 4 (modification of section 3 of the European Communities Act
1972).

European Union (Withdrawal) BillPage 55

17 In section 6 (interpretation), in subsection (1), in the definition of “the 1972
Act”, after “1972” insert (before its repeal by section 1 of the European Union
(Withdrawal) Act 2017)”.

Criminal Procedure (Scotland) Act 1995

18 (1) 5Section 288ZA of the Criminal Procedure (Scotland) Act 1995 (right of
Advocate General to take part in proceedings) is amended as follows.

(2) In subsection (2)—

(a) in paragraph (a)(ii), for “incompatible with EU law” substitute
“made unlawful by section 57(4) of the Scotland Act 1998 (restriction
10on subordinate legislation modifying retained EU law)”, and

(b) in paragraph (b), for “with EU law” substitute “in breach of the
restriction in section 29(4A) of the Scotland Act 1998 (restriction on
the modification of retained EU law)”.

(3) In subsection (3), omit paragraph (c).

15Human Rights Act 1998

19 (1) For the purposes of the Human Rights Act 1998, any retained direct EU
legislation is to be treated as primary legislation and not subordinate
legislation.

(2) In sub-paragraph (1) “primary legislation” and “subordinate legislation”
20have the same meaning as in the Human Rights Act 1998.

Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)2010 (asp 10)

20 The Interpretation and Legislative Reform (Scotland) Act 2010 is amended
as follows.

21 (1) Section 1 (application of Part 1 of the Act) is amended as follows.

(2) 25In subsection (1)—

(a) in paragraph (b), after “day” insert “, in the case of Scottish
instruments made as mentioned in paragraph (a) or (b) of the
definition of “Scottish instrument” in subsection (4),”, and

(b) after paragraph (b) (but before the “and” at the end of that
30paragraph) insert—

(ba) Scottish instruments made on or after exit day, in the
case of Scottish instruments made as mentioned in
paragraph (c) or (d) of the definition of “Scottish
instrument” in subsection (4),”.

(3) 35In subsection (4)—

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

(b) after paragraph (b) insert—

(c) an Act of the Scottish Parliament (whenever passed)
and any retained direct EU legislation (whenever
40made), or

(d) an Act of the Scottish Parliament and an Act of
Parliament (in each case, whenever passed) and any
retained direct EU legislation (whenever made).”

European Union (Withdrawal) BillPage 56

(4) After subsection (9) insert—

(10) In this section “exit day” (and related expressions) and “retained
direct EU legislation” have the same meaning as in the European
Union (Withdrawal) Act 2017 (see section 14(1) and (2) of that Act).”

22 5In section 37 (interpretation of Part 2 of the Act)—

(a) in the definition of “enactment”, at the end insert “and any retained
direct EU legislation”,

(b) after that definition insert—

  • ““retained direct EU legislation” has the same meaning
    10as in the European Union (Withdrawal) Act 2017 (see
    section 14(1) of that Act),”, and

(c) at the end insert—

  • ““subordinate legislation” includes an instrument made
    or to be made under any retained direct EU
    15legislation on or after exit day (within the meaning of
    the European Union (Withdrawal) Act 2017 (see
    section 14(1) and (2) of that Act)).”

23 In Schedule 1 (definitions of words and expressions)—

(a) omit from “the EU” to “meanings given by that Act”, and

(b) 20at the end insert—

“Definitions relating to the EU

“The Communities” means Euratom, the Economic
Community and the Coal and Steel Community, but a
reference to any or all of those Communities is to be treated
25as being or including (as the context requires) a reference
to the EU.

“E.C.S.C. Treaty” means the Treaty establishing the
European Coal and Steel Community, signed at Paris on 18
April 1951.

30“E.E.C. Treaty” means the Treaty establishing the
European Economic Community, signed at Rome on 25
March 1957.

“Entry date” means the date on which the United Kingdom
became a member of the Communities (which neither
35includes nor is a reference to the EU).

“The EU” or “the European Union” means the European
Union, being the Union established by the Treaty on
European Union signed at Maastricht on 7 February 1992
(as amended by any later Treaty); and includes, so far as
40the context permits or requires, Euratom.

EU institution” means any institution of the EU.

EU instrument” means any instrument issued by an EU
institution other than any retained direct EU legislation
(within the meaning of the European Union (Withdrawal)
45Act 2017 (see section 14(1) of that Act)).

European Union (Withdrawal) BillPage 57

“Euratom”, “Economic Community” and “Coal and Steel
Community” mean respectively the European Atomic
Energy Community, the European Economic Community
and the European Coal and Steel Community (but see the
5definition of “the Communities” for provision as to the
construction of references to those Communities).

“Euratom Treaty” means the Treaty establishing the
European Atomic Energy Community, signed at Rome on
25 March 1957.

10“European Court” means the Court of Justice of the
European Union.

“Member”, in the expression “member State”, refers to
membership of the EU.

“The Treaties” or “the EU Treaties” means the Treaties or
15EU Treaties, within the meaning given by section 1(2) of
the European Communities Act 1972 as that Act had effect
immediately before its repeal by section 1 of the European
Union (Withdrawal) Act 2017, as at immediately before
exit day (within the meaning of that Act (see section 14(1)
20and (2) of that Act)).”

Small Business, Enterprise and Employment Act 2015

24 In section 30 of the Small Business, Enterprise and Employment Act 2015
(meaning of “provision for review”), in subsection (3)—

(a) omit “EU obligation or any other”, and

(b) 25omit “Member States or”.

Part 3 General transitional, transitory or saving provision

Continuation of existing acts etc.

25 (1) Anything done—

(a) 30in connection with anything which continues to be, or forms part of,
domestic law by virtue of section 2, 3, 4 or 6(3) or (6), or

(b) for a purpose mentioned in section 2(2)(a) or (b) of the European
Communities Act 1972 or otherwise related to the EU or the EEA,

if in force or effective immediately before exit day, continues to be in force
35or effective on and after exit day.

(2) Anything done—

(a) in connection with anything which continues to be, or forms part of,
domestic law by virtue of section 2, 3, 4 or 6(3) or (6), or

(b) for a purpose mentioned in section 2(2)(a) or (b) of the European
40Communities Act 1972 or otherwise related to the EU or the EEA,

which, immediately before exit day, is in the process of being done continues
to be done on and after exit day.

(3) Sub-paragraphs (1) and (2) are subject to—

(a) section 1 and the withdrawal of the United Kingdom from the EU,

European Union (Withdrawal) BillPage 58

(b) sections 2 to 6 and Schedule 1,

(c) any provision made under section 17(5), and

(d) any other provision made by or under this Act or any other
enactment.

(4) 5References in this paragraph to anything done include references to
anything omitted to be done.

Part 4 Specific transitional, transitory and saving provision

Retention of existing EU law

26 10Section 4(2)(b) does not apply in relation to any rights, powers, liabilities,
obligations, restrictions, remedies or procedures so far as they are of a kind
recognised by a court or tribunal in the United Kingdom in a case decided
on or after exit day but begun before exit day (whether or not as an essential
part of the decision in the case).

27 (1) 15Subject as follows and subject to any provision made by regulations under
section 17(5), section 5(4) and paragraphs 1 to 4 of Schedule 1 apply in
relation to anything occurring before exit day (as well as anything occurring
on or after exit day).

(2) Section 5(4) and paragraphs 1 to 4 of Schedule 1 do not affect any decision of
20a court or tribunal made before exit day.

(3) Section 5(4) and paragraphs 3 and 4 of Schedule 1 do not apply in relation to
any proceedings begun, but not finally decided, before a court or tribunal in
the United Kingdom before exit day.

(4) Paragraphs 1 to 4 of Schedule 1 do not apply in relation to any conduct
25which occurred before exit day which gives rise to any criminal liability.

(5) Paragraph 3(2) of Schedule 1 does not apply in relation to any decision of a
court or tribunal, or other public authority, on or after exit day which is a
necessary consequence of any decision of a court or tribunal made before
exit day.

30Main powers in connection with withdrawal

28 The prohibition on making regulations under section 7, 8 or 9 or Schedule 2
after a particular time does not affect the continuation in force of regulations
made at or before that time (including the exercise after that time of any
power conferred by regulations made at or before that time).

35Devolution

29 (1) The amendments made by section 11 and Part 1 of Schedule 3 do not affect
the validity of—

(a) any provision of an Act of the Scottish Parliament, Act of the
National Assembly for Wales or Act of the Northern Ireland
40Assembly made and in force before exit day, or

(b) any subordinate legislation made, confirmed or approved and in
force before exit day.

European Union (Withdrawal) BillPage 59

(2) Accordingly and subject to sub-paragraphs (3) to (5) and (9), the validity of
anything falling within sub-paragraph (1)(a) or (b) is to be decided by
reference to the law before exit day.

(3) Section 29(2)(d) of the Scotland Act 1998, so far as relating to EU law, does
5not apply to any provision of an Act of the Scottish Parliament made before
exit day if the provision—

(a) comes into force on or after exit day or comes into force before that
day and is a power to make, confirm or approve subordinate
legislation,

(b) 10is made when there is an Order in Council under section 29(4C) of
the Scotland Act 1998, and

(c) would, by virtue of the Order, not be in breach of the restriction in
section 29(4A) of that Act when the provision comes into force (or, in
the case of a provision which comes into force before exit day, on or
15after exit day) if the provision and the Order were made and in force
at that time.

(4) Section 108A(2)(e) of the Government of Wales Act 2006, so far as relating to
EU law, does not apply to any provision of an Act of the National Assembly
for Wales made before exit day if the provision—

(a) 20comes into force on or after exit day or comes into force before that
day and is a power to make, confirm or approve subordinate
legislation,

(b) is made when there is an Order in Council under section 108A(10) of
the Government of Wales Act 2006, and

(c) 25would, by virtue of the Order, not be in breach of the restriction in
section 108A(8) of that Act when the provision comes into force (or,
in the case of a provision which comes into force before exit day, on
or after exit day) if the provision and the Order were made and in
force at that time.

(5) 30Section 6(2)(d) of the Northern Ireland Act 1998, so far as relating to EU law,
does not apply to any provision of an Act of the Northern Ireland Assembly
made before exit day if the provision—

(a) comes into force on or after exit day or comes into force before that
day and is a power to make, confirm or approve subordinate
35legislation,

(b) is made when there is an Order in Council under section 6(8) of the
Northern Ireland Act 1998, and

(c) would, by virtue of the Order, not be in breach of the restriction in
section 6(6) of that Act when the provision comes into force (or, in the
40case of a provision which comes into force before exit day, on or after
exit day) if the provision and the Order were made and in force at
that time.

(6) Section 57(2) of the Scotland Act 1998, so far as relating to EU law, does not
apply to the making, confirming or approving before exit day of any
45subordinate legislation if the legislation—

(a) comes into force on or after exit day,

(b) is made, confirmed or approved when there is an Order in Council
under section 57(5)(c) of the Scotland Act 1998, and