Lords Amendments to Clause 11: Retaining EU restrictions in devolution legislation etc.
Lords Amendments 26 to 31
54 Lords Amendments 26 to 31 would remove the general limit on devolved legislative competence to modify retained EU law, and introduce powers to apply time-limited restrictions in specific areas. These restrictions would be specified in regulations made by a Minister of the Crown, and could only be made where the UK Government has sought to agree the application of the restrictions with the relevant devolved legislature and the regulations have been approved by both Houses of Parliament.
55 To achieve this the amendments would remove the requirement in the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 that the devolved legislatures must legislate compatibly with EU law and instead provide that they cannot legislate contrary to restrictions specified by a Minister of the Crown in regulations.
56 For example, Subsection (2) would insert a new section 30A into the Scotland Act 1998 that would create a power for a Minister of the Crown to specify by regulations areas in which the Scottish Parliament may not modify, or confer powers to modify, retained EU law. This power could also be used to revoke such regulations. Any restriction applied using the power would not affect the competence of the Scottish Parliament to make any provision that it could have made immediately before exit day.
57 Before regulations under the power could be put to the UK Parliament for approval, a Minister of the Crown must provide a copy to the Scottish Ministers and inform the Presiding Officer of the Scottish Parliament, and a decision on consent must have been made by the Scottish Parliament or a 40 day period must have elapsed in which no consent decision has been made. Amendments 92, 98 and 100 to Schedule 3 would deal with requirements for ministers to make explanatory statements when laying draft regulations before Parliament, including specific statements that must be made when consent has not been granted by the devolved legislatures for the draft regulations.
58 Equivalent powers would also be inserted into the Government of Wales Act 2006 and the Northern Ireland Act 1998 respectively. In each case the powers would expire two years after exit day and the regulations made under the power would expire five years after coming into force.
59 In addition, the amendments would give effect to new Part 1A of Schedule 3, which contains a number of reporting duties for Ministers in relation to the powers to apply limits to devolved competence in relation to retained EU law. They would also provide a power for a Minister of the Crown by regulations to repeal any of the new powers to apply limits to devolved competence in relation to retained EU law and place a duty on a Minister of the Crown to consider, at a period of every three months, whether to exercise the power to repeal the new powers (or to revoke regulations made under them).