Explanatory Notes

Part 3: General provision about powers under Act

Scope and nature of powers: general

242 Paragraph 12 sets out how the powers to make regulations in the Bill are exercisable by statutory instrument (where exercised by a minister of the Crown, by a Welsh minister or by a minister of the Crown acting jointly with a devolved authority) and by statutory rule (where the powers are exercised by a Northern Ireland department). As provided for by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010, regulations made by Scottish ministers acting alone will be made by Scottish statutory instrument.

243 Paragraph 13 sets out the scope of all powers in the Bill, including providing that all the powers in the Bill can be used to modify retained EU law and can make provisions in different ways for different cases or descriptions of case, in different circumstances, areas or for different purposes and include the power to make supplementary etc provision and to restate retained EU law.

244 Paragraph 14 provides that powers in the Bill may overlap without that overlap impacting on the scope of each of the powers.

Scope of consequential and transitional powers

245 Sub-paragraph (1) of paragraph 15 provides that the law preserved and converted by clauses 2 to 6 may be modified by the power to make consequential provision.

246 Sub-paragraph (2) therefore clarifies that the consequential power in the Bill can, for example, be used to modify retained EU law if the changes are consequential on repeal of the ECA.

247 Sub-paragraph (3) clarifies that the power to make transitional, transitory and savings provisions can be used to do things in connection with the repeal of the ECA and generally in connection with withdrawal of the UK from the EU. The power can be used for these purposes in a way which is additional to the changes made by the clauses in the Bill that deal with the preservation, conversion and interpretation of EU law, or to produce different effects for particular cases.

248 Sub-paragraph (4) clarifies that the consequential power can do things in connection with repeals made by the Bill, or which are additional to the provisions covered in the clauses of the Bill that deal with the preservation, conversion and interpretation of EU law, including in a way that might alter their effect for particular cases. Provisions of this kind can be treated as retained EU law, as sub-paragraph (5) provides.

Scope of appointed day powers

249 Paragraph 16 provides that a minister of the Crown can specify the time of day when specifying a day under any of the powers in the Bill.

Effect of certain provisions in Schedule 8 on scope of powers

250 Paragraph 17 provides that the powers in the Bill may be used to make different provision, in particular cases, from the changes made by Part 1 of Schedule 8 and amendments to the Interpretation Act 1978 made by paragraphs 7 to 11. For example, although the Bill amends the definition of ‘enactment’ in the Interpretation Act so as to include retained direct EU legislation, the powers in the Bill could, where appropriate, be used to amend references to ‘enactment’ in other legislation so as to exclude some or all retained direct EU legislation from the definition.

Disapplication of certain review provisions

251 Paragraph 18 disapplies the requirement in the Small Business, Enterprise and Employment Act 2015 to conduct and publish a post-implementation review for any secondary legislation made under any of the powers in the Act. Post-implementation reviews assess the impact of new legislation on business.

Hybrid instruments

252 Paragraph 19 sets out that regulations brought forward under the powers in this Bill are never to be treated as hybrid instruments.1

Procedure on re-exercise of certain powers

253 Paragraph 20 provides that where an instrument modifies certain earlier regulations made under the Bill, the rules for choosing the scrutiny procedure apply afresh.

Combinations of instruments

254 Regulations under the powers in this Bill can be combined with regulations under most other powers in other Acts; "levelling up" the whole instrument to the more onerous scrutiny procedure where relevant. Paragraph 21 allows affirmative regulations under this Bill to be combined with negative regulations under other powers. Other provisions (see for example paragraph 1(3) of Schedule 7) would enable other combinations.

1 Some statutory instruments which need to be approved by both Houses (affirmative instruments) are ruled to be hybrid instruments because they affect some members of a group (be it individuals or bodies) in a manner different from others in the same group. This question might otherwise arise in relation to regulations amending converted EU decisions addressed to individuals in an affirmative instrument.


Prepared 13th July 2017