Part 1: Dealing with deficiencies arising from withdrawal
158 Part 1 describes the circumstances in which devolved authorities (defined in clause 14 as Scottish ministers, Welsh ministers and Northern Ireland departments) can use the power to deal with deficiencies arising from withdrawal.
Power to deal with deficiencies
159 Paragraph 1 provides that the power to deal with deficiencies arising from withdrawal can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. The same restrictions on the use of the power which apply to UK ministers also apply to devolved authorities. It also provides that the devolved authorities cannot use the power to sub-delegate law making powers.
No power to make provision outside devolved competence
160 Paragraph 2 provides that the power to deal with deficiencies arising from withdrawal cannot be used outside of the devolved competence of the devolved authorities as set out in paragraphs 9 to 12 of this Schedule 2.
No power to modify retained direct EU legislation etc.
161 Sub-paragraph (1) of paragraph 3 provides that the devolved authorities can only use the power to deal with deficiencies to amend EU-derived domestic legislation. Sub-paragraph (2) prohibits the devolved authorities from using the power in ways that would create inconsistencies with any corrections to retained direct EU law which the UK Government has made. For example, where the UK Government is correcting an EU regulation and a devolved authority is correcting the domestic legislation which creates the enforcement provisions for that EU regulation, the domestic legislation will need to be corrected in a way that makes sense with the corrected EU regulation.
No power to confer certain functions relating to EU tertiary legislation
162 Paragraph 4 provides that devolved authorities cannot use this power to confer the function to make what is currently known in the EU as tertiary legislation or non-legislative acts (delegated and implementing acts).
Requirement for consent in certain circumstances
163 Paragraph 5 sets out the requirement for the devolved authorities to seek consent from the UK Government prior to legislating in certain circumstances. These circumstances are where either the legislation is being commenced prior to exit day, or where the legislation relates to the unwinding of reciprocal arrangements.
Requirement for consent where it would otherwise be required
164 Paragraph 6 sets out that if a devolved authority is making a provision using the power to deal with deficiencies arising from withdrawal that would require consent if it were a provision in legislation of the relevant devolved legislature or where the devolved administration would normally require consent to make such a provision via secondary legislation, then that consent will still be required. This will not apply if the devolved authority already has power to make such provision using secondary legislation without needing the consent of the minister of the Crown.
Requirement for joint exercise where it would otherwise be required
165 Paragraph 7 sets out that where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the power to deal with deficiencies.
Requirement for consultation where it would otherwise be required
166 Paragraph 8 requires consultation with the UK Government on legislation made by a devolved authority in the exercise of the power to deal with deficiencies, where the devolved authority would normally be required to consult with the UK Government when making those kind of changes in legislation.
Meaning of devolved competence: Part 1
167 Paragraphs 9 to 12 clarify the extent of devolved competence in relation to the exercise of the power to deal with deficiencies arising from withdrawal.
168 Paragraph 9 relates to the competence of the Scottish ministers. Sub-paragraph (1) relates to legislative competence, and sets out that a Scottish minister may exercise the power to deal with deficiencies where the Scottish Parliament has legislative competence. The definition of ‘legislative competence’ for the purposes of exercising this power disapplies the normal restriction on the Scottish Parliament’s competence which prevents the Scottish Parliament from legislating in a way that is incompatible with EU law. This disapplication is necessary to enable Scottish ministers to make all necessary regulations under this power to correct deficiencies in devolved areas. This is because correcting deficiencies in retained EU law will inevitably require some changes that would be incompatible with EU law and therefore would be outside the normal legislative competence of the Scottish Parliament.
169 Sub-paragraph (2) relates to those secondary legislation making powers which are not within legislative competence but are within executive competence of a Scottish minister (these would include, for example, secondary legislation making functions transferred to Scottish ministers under section 63 of the Scotland Act 1998). This sets out that Scottish ministers may act to correct secondary legislation which has been made under their executive competence, even where those corrections would not be within the legislative competence as described in sub-paragraph (1). This is subject to certain restrictions described in sub-paragraph (2) around application, extent and subject matter of those corrections.
170 Paragraph 10 relates to the competence of Welsh ministers and makes the same provision for Welsh ministers as for Scottish ministers as set out in paragraph 9. Welsh ministers will be able to exercise the power to deal with deficiencies in areas within the Welsh Assembly’s legislative competence (disapplying the normal restrictions preventing the Welsh Assembly from legislating in a way that is incompatible with EU law) and to correct deficiencies in legislation which has been made under their executive competence.
171 Paragraph 11 relates to the competence of Northern Ireland departments. Sub-paragraph (1)(a) deals with transferred matters, providing that Northern Ireland devolved authorities may make regulations using the power to deal with deficiencies in any areas which would be within the Northern Ireland Assembly’s legislative competence, and which would not require consent of the Secretary of State for Northern Ireland. Sub-paragraph (1)(b) deals with reserved matters, providing that where Northern Ireland legislation has previously been made in relation to reserved matters, Northern Ireland departments and ministers will be able to use the power to deal with deficiencies to amend this legislation.
172 In both sub-paragraphs (1)(a) and (1)(b) the existing restriction on legislative competence that would make it outside of legislative competence to act in a way that is incompatible with EU law is disapplied for the purposes of defining legislative competence for the purpose of this power. Sub-paragraph (2) makes the same provision as for Scottish and Welsh ministers so that Northern Ireland departments can exercise the power to deal with deficiencies to correct legislation which has been made under their executive competence.