Explanatory Notes

Part 4: Specific transitional, transitory and saving provision

Retention of existing EU law

277 Paragraph 26 provides that rights etc which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before exit but are decided on or after exit day are preserved by clause 4 and are not excluded by subsection (2) of that clause.

278 Paragraph 27 makes further provision about the exceptions to the saving and incorporation of EU law set out in clause 5 and Schedule 1. The starting point is that these exceptions apply in relation to anything occurring before exit day as well as anything occurring after exit day. However, this is subject to the following specific transitional and saving provision and any specific saving and transitional provision made in regulations under clause 17(5). First, none of the exceptions apply in relation to cases which have already been decided before exit day (see sub-paragraph (2)). Secondly, the exceptions to preserved and converted law set out in clause 5(1) to (4) and paragraphs 3 and 4 of Schedule 1 will not apply in respect of proceedings which have begun before exit but are not decided until after exit (see sub-paragraph (3)). So, for example, a Francovich claim commenced before exit can be decided by a court after exit. Thirdly, the exceptions in clause 5(1) to (3) and Schedule 1 will not apply in relation to any criminal conduct which occurred prior to exit day (see sub-paragraph (4)).

279 Finally, sub-paragraph (5) provides that where a court or tribunal takes a decision on or after exit day which is a necessary consequence of a decision made before exit day, it will be able to disapply any enactment or rule of law, or quash any conduct on the basis of incompatibility with the general principles. This saves the effect of pre-exit case law in which the courts have disapplied a provision of pre-exit legislation on the grounds that it is incompatible with one of the general principles of EU law.

Main powers in connection with withdrawal

280 Paragraph 28 clarifies that although certain powers in the Bill expire, the regulations made under them do not expire.

Devolution

281 Sub-paragraph (1) of paragraph 29 provides that the amendments made to the devolution legislation by clause 11 and Part 1 of Schedule 3 do not affect the validity of devolved primary legislation that has been made and is in force before exit day, or secondary legislation that has been made, confirmed or approved and is in force before exit day. Paragraph 30 makes equivalent provision in respect of administrative acts done before exit day.

282 Sub-paragraphs (3) to (5) of paragraph 29 disapply the current EU law limits on competence so that primary legislation can be passed validly before exit day in relation to an area that has been released from the interim competence arrangement by Order in Council, provided the legislation comes into force on or after exit and is passed at a time when the relevant Order in Council has been made. Sub-paragraphs (6) to (8) make similar provision in relation to the making, confirming or approving of secondary legislation before exit day.

283 Sub-paragraph (9) disapplies – for the purposes of the exercise of the powers in Schedules 2 and 4 – the provisions in the devolution Acts that would otherwise prevent the devolved administrations from making secondary legislation that would be incompatible with EU law. If this restriction was not lifted the devolved administrations would be unable to start making regulations to fix all the deficiencies in devolved law and making other provisions to prepare for EU withdrawal until after the UK left the EU (as some of the necessary changes would inevitably be incompatible with EU law). Therefore the restriction needs to be lifted so that the devolved administrations are able to start making the necessary legislation before exit day so that those changes are ready to come into force on exit day.

Other provision

284 Paragraph 31 is a transitional provision related to the definition of ‘relevant criminal offence’ and reflects a pending amendment to the Regulation of Investigatory Powers Act 2011.

285 Paragraph 32 makes transitional provision for the amendment to section 56 Finance Act 1973. It deals with payment after exit for services etc received before exit. It also saves the effect of section 56 where regulations made under it are preserved and the service is still being provided post exit.

 

Prepared 13th July 2017