Part 1: General consequential provision
Existing ambulatory references to retained direct EU legislation
255 Paragraphs 1 and 2 of Schedule 8 set out what happens with existing ambulatory references after exit. As described above, these are cross-references to EU instruments as they may be amended from time to time in the future. Paragraph 1A of Schedule 2 to the ECA provided a power to make such references, and some have also been made in primary legislation and using other powers.
256 The effect of paragraph 1(1) is that existing ambulatory references to EU regulations, decisions, tertiary legislation or provisions of the EEA agreement will stop updating on or after exit day, and will instead become references to the retained versions of those instruments. Therefore existing ambulatory references to direct EU legislation are to be read as references to the version of the EU instrument as it was in force immediately before exit day (and hence to the retained instrument as it forms part of domestic law), as modified from time to time by domestic law (unless the contrary intention appears). This approach ensures that modifications of EU law made by the EU on or after exit day do not form part of UK domestic law. As set out in paragraph 1(2), however, this does not affect powers in other domestic legislation (i.e. other than the power contained in the ECA) which will be preserved under clause 2 of the Bill. Nor does it affect powers which are subject to a procedure in the devolved legislatures. Paragraph 1(3) provides that paragraph 1(1) is also subject to other provision made by or under this Act, including the powers in clauses 7 to 9.
Other existing ambulatory references
257 Paragraph 2 provides that any other existing ambulatory references (which are not dealt with by paragraph 1) to any of the EU treaties, other EU instruments (such as directives) or any other document of an EU entity do not continue to update after exit day. So, for example, where there is a reference in domestic legislation to an ‘EU Directive as amended from time to time’, this paragraph ensures that the reference to the directive should be read as the version that had effect immediately before exit day. Any updates to that directive which occur after exit day would not be brought into domestic law. Regulations made under clause 7 will be capable of correcting any deficiencies which arise as a result. As set out in paragraph 2(2), however, paragraph 2(1) does not affect powers in other domestic legislation (i.e. other than the power contained in the ECA) which will be preserved under clause 2 of the Bill. Nor does it affect powers which are subject to a procedure in the devolved legislatures. Paragraph 2(3) provides that paragraph 2(1) is also subject to other provision made by or under this Act, including the powers in clauses 7 to 9.
Existing powers to make subordinate legislation
258 Sub-paragraph (1) of paragraph 3 provides that any existing powers to make subordinate legislation in pre-exit legislation are capable of amending retained direct EU legislation such as converted EU regulations (and sub-paragraph (2) provides that it is treated as secondary legislation for the purposes of scrutiny procedures under those pre-exit powers).
259 Sub-paragraph (3) provides that pre-exit powers do not have any implied EU law restriction (meaning they can be used to legislate in a way that would not have been compatible with EU law pre-exit, as long as the power would be capable of being used in that way on a plain reading).
260 The provisions of paragraph 3 apply to the pre-existing secondary legislation making powers of the devolved administrations as well as to the secondary legislation making powers of ministers of the Crown. However in relation to the devolved administrations these pre-existing powers are subject to the devolution provisions described in paragraph 33 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence.
Review provisions in existing subordinate legislation
261 Paragraph 4 deals with duties to conduct post-implementation reviews of regulations made before exit, such as under section 28 of the Small Business, Enterprise and Employment Act 2015. In conducting those reviews, ministers will not now need to have regard to how EU member states have implemented former EU obligations.
Future powers to make subordinate legislation
262 Paragraph 5 provides that powers to make secondary legislation in Acts passed after the UK’s withdrawal from the EU are capable of amending retained direct EU legislation, unless otherwise provided.