Explanatory Notes

Part 2: Complying with international obligations

173 Part 2 describes the circumstances in which devolved authorities can use the power to comply with international obligations.

Power to comply with international obligations

174 Paragraph 13 provides that the power to comply with international obligations can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. It sets out that the same restrictions on the use of the power that apply to UK ministers also apply to devolved ministers, along with an additional restriction preventing the power from being used to sub-delegate law-making powers.

No power to make provision outside devolved competence

175 Paragraph 14 provides that the international obligations power cannot be used outside of the devolved competence of the devolved authorities as set out in paragraphs 18 to 20 of this Schedule 2.

No power to modify retained direct EU legislation etc.

176 Paragraph 15 provides that the devolved authorities cannot use the power to amend retained direct EU legislation or in a way which is inconsistent with amendments made by ministers of the Crown to retained direct EU legislation.

Requirement for consent in certain circumstances

177 Paragraph 16 sets out circumstances in which the devolved authorities would need to seek the consent of the UK Government before legislating. This is where proposed regulations would come into force before exit day, relate to World Trade Organisation obligations, or relate to the modification or allocation of quota.

Certain requirement for consent, joint exercise or consultation

178 Paragraph 17 applies the rules set out in paragraphs 6 to 8 (requirement for consent, joint exercise and consultation) to the use of the international obligations power so that where a devolved authority would normally only be able to make legislation with UK Government consent, after consulting with the UK Government or jointly with the UK Government, the devolved authority will still have to obtain consent, consult or make such legislation jointly (as applicable) when exercising the international obligation power to make such a provision.

Meaning of devolved competence: Part 2

179 Paragraphs 18 to 20 define devolved competence for the purposes of exercising the power.

180 Paragraph 18 provides that something is within the devolved competence of Scottish ministers for the purposes of this power if it is either within the legislative competence of the Scottish Parliament (if the EU law restriction on legislative competence was disapplied) or is otherwise an area in which Scottish ministers could have made the relevant provision by secondary legislation (if there was not a general restriction on making secondary legislation that contravened EU law). The disapplication of the EU law restrictions for the purposes of defining the Scottish ministers’ ability to use this power is necessary to enable Scottish ministers to make all necessary changes under this power in devolved areas. This is because any changes needed under this power are likely to involve a change that would be incompatible with EU law prior to exit.

181 Paragraph 19 makes the same provision for the devolved competence of Welsh ministers as for Scottish ministers. Welsh ministers have competence if something is within the legislative competence of the Welsh Assembly or is otherwise an area in which Welsh ministers could make the relevant provision by secondary legislation (disapplying the normal restrictions that would otherwise prevent the Welsh Assembly or Welsh ministers from legislating incompatibly with EU law).

182 Paragraph 20 makes provision for the competence of a Northern Ireland department. Sub-paragraph (a) deals with transferred matters, providing that Northern Ireland departments may make regulations in any areas which would be within the Assembly’s legislative competence and that would not require the consent of the Secretary of State. Sub-paragraph (b) deals with reserved matters, providing that where the Northern Ireland legislation has previously been made in relation to reserved matters that legislation can be amended using the international obligations power. Sub-paragraph (c) provides that Northern Ireland departments can also use the power in areas where they would otherwise have been able to make secondary legislation. As with Scotland and Wales, the normal restrictions on making legislation which contravenes EU law are disapplied for the purposes of defining devolved competence to use this power.

 

Prepared 13th July 2017