European Union (Withdrawal) Bill (HC Bill 147)

(4) The power to make regulations under section 17(1) includes the power to
make transitional, transitory or saving provision which—

(a) is in connection with any repeal or revocation made by any such
regulations of an enactment in consequence of—

(i) 5the repeal of any enactment contained in the European
Communities Act 1972, or

(ii) the withdrawal of the United Kingdom from the EU, and

(b) is additional to that made by any provision of sections 2 to 6 or
Schedule 1 or alters its effect in particular cases or descriptions of
10case.

(5) Provision of the kind mentioned in sub-paragraph (3) or (4) may (among
other things) include further provision treating any provision of that kind as
retained EU law for particular purposes or all purposes.

Scope of appointed day powers

18 15Any power of a Minister of the Crown under this Act to appoint a day
includes a power to appoint a time on that day if the Minister considers it
appropriate to do so.

Effect of certain provisions in Schedule 8 on scope of powers

19 The modifications made by Part 1 of Schedule 8 and paragraphs 7 to 11 and
2020 to 23 of that Schedule do not prevent or otherwise limit the making of
different provision, in particular cases or descriptions of case, in regulations
under section 17(1) or in any other regulations under this Act.

Disapplication of certain review provisions

20 Section 28 of the Small Business, Enterprise and Employment Act 2015 (duty
25to review regulatory provisions in secondary legislation) does not apply in
relation to any power to make regulations conferred by this Act.

Explanatory statements for certain powers: appropriateness, equalities etc.

21 (1) This paragraph applies where a statutory instrument containing regulations
under section 7, 8 or 9, or a draft of such an instrument, is to be laid before
30each House of Parliament.

(2) Before the instrument or draft is laid, the relevant Minister must make a
statement to the effect that in the Minister’s opinion the instrument or draft
does no more than is appropriate.

(3) Before the instrument or draft is laid, the relevant Minister must make a
35statement—

(a) as to whether the instrument or draft amends, repeals or revokes any
provision of equalities legislation, and

(b) if it does, explaining the effect of each such amendment, repeal or
revocation.

(4) 40Before the instrument or draft is laid, the relevant Minister must make a
statement to the effect that, in relation to the instrument or draft, the Minister
has, so far as required to do so by equalities legislation, had due regard to

the need to eliminate discrimination, harassment, victimisation and any
other conduct that is prohibited by or under the Equality Act 2010.

(5) Before the instrument or draft is laid, the relevant Minister must make a
statement otherwise explaining—

(a) 5the instrument or draft,

(b) the reasons for it,

(c) the law before exit day which is relevant to it, and

(d) its effect (if any) on retained EU law.

(6) If the relevant Minister fails to make a statement required by sub-paragraph
10(2), (3), (4) or (5) before the instrument or draft is laid, a Minister of the
Crown must make a statement explaining why the relevant Minister has
failed to do so.

(7) A statement under sub-paragraph (2), (3), (4), (5) or (6) must be made in
writing and be published in such manner as the Minister making it considers
15appropriate.

(8) For the purposes of this paragraph, where an instrument or draft is laid
before each House of Parliament on different days, the earlier day is to be
taken as the day on which it is laid before both Houses.

(9) This paragraph does not apply in relation to any laying before each House
20of Parliament of an instrument or draft instrument where an equivalent
draft instrument (ignoring any differences relating to procedure) has
previously been laid before both Houses.

(10) In this paragraph—

• “equalities legislation” means the Equality Act 2006, the Equality Act
  252010 or any subordinate legislation made under either of those Acts;

• “the relevant Minister” means the Minister of the Crown who makes, or
  is to make, the instrument.

Hybrid instruments

22 If an instrument, or a draft of an instrument, containing regulations under
30this Act would, apart from this paragraph, be treated as a hybrid instrument
for the purposes of the standing orders of either House of Parliament, it is to
proceed in that House as if it were not a hybrid instrument.

Procedure on re-exercise of certain powers

23 (1) An instrument to which paragraph 1(1) or (3), 1(5) or (6), 1(7) or (8), 1(9) or
35(10), 2(3) or (4), 2(5) or (6), 2(10) or (11), 2(12) or (13), 4(2), 6(1) or (3), 7(1) or
(3), 8(1) or (3), 11(2) or (4) or 13(2) applies which revokes, amends or re-
enacts any such instrument may (in spite of section 14 of the Interpretation
Act 1978) be subject to a different procedure under this Schedule from the
procedure to which the instrument containing the original regulations was
40subject or, in the case of regulations under section 17(5), no procedure.

(2) The references in sub-paragraph (1) to paragraph 1(5) or (6), 1(7) or (8), 1(9)
or (10), 2(3) or (4), 2(5) or (6), 2(10) or (11) or 2(12) or (13) include references
to those provisions as applied by paragraph 6(5), 7(5) or 8(4).

Combinations of instruments

24 (1) Sub-paragraph (2) applies to a statutory instrument containing regulations
under this Act which is subject to a procedure before Parliament that
requires the approval of the instrument in draft before it is made or its
5approval after it is made.

(2) The statutory instrument may also include regulations under this Act or
another enactment which are made by statutory instrument which is subject
to a procedure before Parliament that provides for the annulment of the
instrument after it has been made.

(3) 10Where regulations are included as mentioned in sub-paragraph (2), the
procedure applicable to the statutory instrument is the procedure
mentioned in sub-paragraph (1) and not the procedure mentioned in sub-
paragraph (2).

(4) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
15containing regulations under this Act which is subject to a procedure before
the National Assembly for Wales as they apply in relation to a statutory
instrument containing regulations under this Act which is subject to a
procedure before Parliament but as if the references to Parliament were
references to the National Assembly for Wales.

(5) 20Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
in relation to a statutory instrument but as if the references to Parliament
were references to the Northern Ireland Assembly.

(6) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under this Act which is subject to a procedure before
25the Scottish Parliament, the National Assembly for Wales or the Northern
Ireland Assembly as well as a procedure before Parliament as they apply to
a statutory instrument containing regulations under this Act which is subject
to a procedure before Parliament but as if the references to Parliament were
references to Parliament and the Scottish Parliament, the National Assembly
30for Wales or (as the case may be) the Northern Ireland Assembly.

(7) This paragraph does not prevent the inclusion of other regulations in a
statutory instrument or statutory rule which contains regulations under this
Act.

Section 17(4) and (6)

SCHEDULE 8 35Consequential, transitional, transitory and saving provision

Part 1 General consequential provision

Existing ambulatory references to retained direct EU legislation

1 (1) Any reference which, immediately before exit day—

(a) 40exists in—

(i) any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
provision of the EEA agreement which is to form part of
domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
5paragraph (i) or (ii), and

(b) is a reference to (as it has effect from time to time) any EU regulation,
EU decision, EU tertiary legislation or provision of the EEA
agreement which is to form part of domestic law by virtue of section
3,

10is to be read, on or after exit day, as a reference to the EU regulation, EU
decision, EU tertiary legislation or provision of the EEA agreement as it
forms part of domestic law by virtue of section 3 and, unless the contrary
intention appears, as modified by domestic law from time to time.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
15power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) continues to be part of domestic law by virtue of section 2, and

(b) is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) 20Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Other existing ambulatory references

2 (1) Any reference which—

(a) exists, immediately before exit day, in—

(i) 25any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
provision of the EEA agreement which is to form part of
domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
30paragraph (i) or (ii),

(b) is not a reference to which paragraph 1(1) applies, and

(c) is, immediately before exit day, a reference to (as it has effect from
time to time) any of the EU Treaties, any EU instrument or any other
document of an EU entity,

35is to be read, on or after exit day, as a reference to the EU Treaty, instrument
or document as it has effect immediately before exit day.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) 40continues to be part of domestic law by virtue of section 2, and

(b) is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Existing powers to make subordinate legislation

3 (1) Any power to make, confirm or approve subordinate legislation which was
conferred before exit day is to be read, on or after exit day and so far as the
context permits or requires, as being capable of being exercised to modify
5(or, as the case may be, result in the modification of) any retained direct EU
legislation.

(2) Any subordinate legislation modifying any retained direct EU legislation
which is, or is to be, made, confirmed or approved by virtue of sub-
paragraph (1) is to be subject to the same procedure (if any) before
10Parliament, the Scottish Parliament, the National Assembly for Wales or the
Northern Ireland Assembly as would be the case for that legislation if it were
modifying other subordinate legislation.

(3) Any power to make, confirm or approve subordinate legislation which,
immediately before exit day, is subject to an implied restriction that it is
15exercisable only compatibly with EU law is to be read on or after exit day
without that restriction or any corresponding restriction in relation to
compatibility with retained EU law.

(4) Sub-paragraphs (1) to (3)—

(a) do not apply so far as section 57(4) of the Scotland Act 1998, section
2080(8) of the Government of Wales Act 2006 or section 24(3) of the
Northern Ireland Act 1998 applies, and

(b) are subject to any other provision made by or under this Act or any
other enactment.

Review provisions in existing subordinate legislation

4 (1) 25In carrying out a review of a provision of subordinate legislation on or after
exit day (whether under provision made in accordance with section 28 of the
Small Business, Enterprise and Employment Act 2015 or otherwise), a
person is not required, by any pre-exit enactment, to have regard to how any
former EU obligation is implemented elsewhere than in the United
30Kingdom.

(2) In this paragraph—

• “former EU obligation” means an obligation by which the United
  Kingdom is, as a result of the United Kingdom’s withdrawal from
  the EU, no longer bound at the time of the review,

• 35“pre-exit enactment” means an Act passed, or subordinate legislation
  made, before exit day, and

• “subordinate legislation” does not include an instrument made under
  an Act of the Scottish Parliament, Northern Ireland legislation or a
  Measure or Act of the National Assembly for Wales.

40Future powers to make subordinate legislation

5 (1) Any power to make, confirm or approve subordinate legislation which is
conferred on or after exit day may, so far as applicable and unless the
contrary intention appears, be exercised so as to modify (or, as the case may
be, result in the modification of) any retained direct EU legislation.

(2) Sub-paragraph (1) does not apply so far as section 57(4) of the Scotland Act
1998, section 80(8) of the Government of Wales Act 2006 or section 24(3) of
the Northern Ireland Act 1998 applies.

Part 2 5Specific consequential provision

Finance Act 1973

6 In section 56 of the Finance Act 1973 (charges for services etc. by
Government departments), in subsection (1), omit “any EU obligation or”.

Interpretation Act 1978

7 10The Interpretation Act 1978 is amended as follows.

8 In section 21(1) (meaning of “subordinate legislation”) after “any Act” insert
“or made or to be made on or after exit day under any retained direct EU
legislation”.

9 After section 23 (application to other instruments) insert—

“23ZA 15Retained direct EU legislation

(1) The provisions of this Act (except sections 1 to 4, 13 and 19(2)) apply,
so far as applicable and unless the contrary intention appears, to any
retained direct EU legislation so far as it—

(a) is amended by an Act, subordinate legislation or devolution
20legislation, and

(b) is not subordinate legislation,

as they apply to an Act passed at the corresponding time.

(2) In their application by virtue of subsection (1)—

(a) section 10 has effect as if the reference to the passing of the
25Act were a reference to the corresponding time,

(b) section 11 has effect as if the second reference to an Act
included a reference to the retained direct EU legislation so
far as unamended (as well as a reference to that legislation so
far as amended), and

(c) 30section 16(1) has effect as if the reference to the repealing Act
not being passed were a reference to the repeal not having
been made.

(3) References in this Act to the repeal of an enactment are to be read, in
the case of an enactment which is retained direct EU legislation, as
35references to the revocation of the enactment.

(4) In Schedule 1—

(a) in the definition of “Commencement”, the references to an
enactment do not include any retained direct EU legislation
other than—

(i) 40any such legislation to which subsection (1) applies or

(ii) any instrument made on or after exit day under any
retained direct EU legislation, and

(b) in the definitions of “The Corporation Tax Acts” and “The
Income Tax Acts”, the references to an enactment do not
include any retained direct EU legislation.

(5) For the application of this Act to retained direct EU legislation which
5is subordinate legislation, see section 23(1) and (2).

(6) In this section—

• “corresponding time” means the time when the amending Act,
  subordinate legislation or devolution legislation was passed
  or (as the case may be) made, and

• 10“devolution legislation” means—

  (a)

  an Act of the Scottish Parliament,

  (b)

  a Measure or Act of the National Assembly for Wales,

  (c)

  Northern Ireland legislation (for the meaning of
  which see section 24(5)), or

  (d)

  15an instrument made under anything falling within
  paragraph (a), (b) or (c).””

10 In section 24 (application to Northern Ireland), in subsection (4)—

(a) omit “and related expressions”,

(b) after “Corporation Tax Acts;” insert—

• 20““E.C.S.C. Treaty;

• E.E.C. Treaty;”,”

(c) after “state;” insert—

• ““Entry date;

• The EU or the European Union;

• 25EU institution;

• EU instrument;

• Euratom, Economic Community and Coal and Steel
  Community;

• Euratom Treaty;

• 30European Court;”,”

(d) after “Income Tax Acts;” insert—

• ““Member (in the expression “member State”);”, and”

(e) after “The Tax Acts” insert “;

• The Treaties or the EU Treaties”.”

11 35In Schedule 1 (words and expressions defined)—

(a) omit ““The EU” or “the EU Treaties” and other expressions defined
by section 1 of and Schedule 1 to the European Communities Act
1972 have the meanings prescribed by that Act.”,

(b) omit the definition of “EEA agreement”,

(c) 40omit the definition of “EEA state”,

(d) in the definition of “enactment”, before “does” insert “includes any
retained direct EU legislation but”, and

(e) at the end insert—

““Definitions relating to the EU and the United Kingdom’s withdrawal

45“The Communities” means Euratom, the Economic
Community and the Coal and Steel Community, but a

reference to any or all of those Communities is to be treated
as being or including (as the context requires) a reference
to the EU.

“E.C.S.C. Treaty” means the Treaty establishing the
5European Coal and Steel Community, signed at Paris on 18
April 1951.

“EEA agreement” means the agreement on the European
Economic Area signed at Oporto on 2 May 1992, together
with the Protocol adjusting that Agreement signed at
10Brussels on 17 March 1993, as modified or supplemented
from time to time, but does not include any retained direct
EU legislation. [8 January 2007]

“EEA state”, in relation to a time, means—

(a) a state which at that time is a member State, or

(b) 15any other state which at that time is a party to the
EEA agreement. [8 January 2007]

“E.E.C. Treaty” means the Treaty establishing the
European Economic Community, signed at Rome on 25
March 1957.

20“Entry date” means the date on which the United Kingdom
became a member of the Communities (which neither
includes nor is a reference to the EU).

“The EU” or “the European Union” means the European
Union, being the Union established by the Treaty on
25European Union signed at Maastricht on 7 February 1992
(as amended by any later Treaty); and includes, so far as
the context permits or requires, Euratom.

“EU institution” means any institution of the EU.

“EU instrument” means any instrument issued by an EU
30institution other than any retained direct EU legislation.

“Euratom”, “Economic Community” and “Coal and Steel
Community” mean respectively the European Atomic
Energy Community, the European Economic Community
and the European Coal and Steel Community (but see the
35definition of “the Communities” for provision as to the
construction of references to those Communities).

“Euratom Treaty” means the Treaty establishing the
European Atomic Energy Community, signed at Rome on
25 March 1957.

40“European Court” means the Court of Justice of the
European Union.

“Exit day” (and related expressions) have the same
meaning as in the European Union (Withdrawal) Act 2018
(see section 14(1) to (5) of that Act).

45“Member”, in the expression “member State”, refers to
membership of the EU.

“Retained EU law” and “retained direct EU legislation”
have the same meaning as in the European Union
(Withdrawal) Act 2018 (see sections 6(7) and 14(1) of that
Act).

5“Retained EU obligation” means an obligation that—

(a) was created or arose by or under the EU Treaties
before exit day, and

(b) forms part of retained EU law,

as modified from time to time.

10“The Treaties” or “the EU Treaties” means the Treaties or
EU Treaties, within the meaning given by section 1(2) of
the European Communities Act 1972 as that Act had effect
immediately before its repeal by section 1 of the European
Union (Withdrawal) Act 2018, as at immediately before
15exit day.””

European Economic Area Act 1993

12 The European Economic Area Act 1993 is amended as follows.

13 Omit section 1 (EEA agreement to be an EU Treaty).

14 (1) Section 2 (consistent application of law to the whole of the EEA) is amended
20as follows.

(2) In subsection (3)—

(a) in paragraph (a), after “Act” insert “as at immediately before exit
day”, and

(b) omit paragraph (b), the “or” before that paragraph and the words
25after that paragraph.

(3) After that subsection insert—

“(3A) This section is subject to any amendment, repeal, revocation or other
modification of retained EU law on or after exit day.””

(4) Omit subsections (4) to (6).

15 (1) 30Section 3 (general implementation of the EEA agreement) is amended as
follows.

(2) In subsection (3)—

(a) in paragraph (a), after “Act” insert “as at immediately before exit
day”, and

(b) 35omit paragraph (b), the “or” before that paragraph and the words
after that paragraph.

(3) After subsection (4) insert—

“(4A) This section is subject to any amendment, repeal, revocation or other
modification of retained EU law on or after exit day.””

16 40Omit section 4 (modification of section 3 of the European Communities Act
1972).

17 In section 6 (interpretation), in subsection (1), in the definition of “the 1972
Act”, after “1972” insert (before its repeal by section 1 of the European Union
(Withdrawal) Act 2018)”.

Criminal Procedure (Scotland) Act 1995

18 (1) 5Section 288ZA of the Criminal Procedure (Scotland) Act 1995 (right of
Advocate General to take part in proceedings) is amended as follows.

(2) In subsection (2)—

(a) in paragraph (a)(ii), for “incompatible with EU law” substitute
“made unlawful by section 57(4) of the Scotland Act 1998 (restriction
10on subordinate legislation modifying retained EU law)”, and

(b) in paragraph (b), for “with EU law” substitute “in breach of the
restriction in section 29(4A) of the Scotland Act 1998 (restriction on
the modification of retained EU law)”.

(3) In subsection (3), omit paragraph (c).

15Human Rights Act 1998

19 (1) For the purposes of the Human Rights Act 1998, any retained direct EU
legislation is to be treated as primary legislation and not subordinate
legislation.

(2) In sub-paragraph (1) “primary legislation” and “subordinate legislation”
20have the same meaning as in the Human Rights Act 1998.

Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)2010 (asp 10)

20 The Interpretation and Legislative Reform (Scotland) Act 2010 is amended
as follows.

21 (1) Section 1 (application of Part 1 of the Act) is amended as follows.

(2) 25In subsection (1)—

(a) in paragraph (b), after “day” insert “, in the case of Scottish
instruments made as mentioned in paragraph (a) or (b) of the
definition of “Scottish instrument” in subsection (4),”, and

(b) after paragraph (b) (but before the “and” at the end of that
30paragraph) insert—

“(ba) Scottish instruments made on or after exit day, in the
case of Scottish instruments made as mentioned in
paragraph (c) or (d) of the definition of “Scottish
instrument” in subsection (4),”.”

(3) 35In subsection (4)—

(a) omit the “or” at the end of paragraph (a), and

(b) after paragraph (b) insert—

“(c) an Act of the Scottish Parliament (whenever passed)
and any retained direct EU legislation (whenever
40made), or

(d) an Act of the Scottish Parliament and an Act of
Parliament (in each case, whenever passed) and any
retained direct EU legislation (whenever made).””