Explanatory Notes

Lords Amendments to Schedule 2: Corresponding powers involving devolved authorities

Lords Amendments 54, 57, 60 to 70, 76 and 78

82 Lords Amendments 54, 57, 60 to 70, 76 and 78 would allow devolved authorities, when exercising the powers in Schedule 2 jointly with a Minister of the Crown, to make provision that they could not make when exercising those powers alone.

83 This would be achieved by clarifying that the additional restrictions on the Schedule 2 powers, which apply only to those powers and not to the corresponding powers in clause 7(1) and clause 9, only apply to devolved authorities acting alone. This would include the requirement that provisions be within devolved competence.

Lords Amendments 55, 74 and 75

84 Lords Amendments 55, 74 and 75 would remove the restrictions on devolved authorities using their powers in Schedule 2 to confer further powers to make legislation in order that they can sub-delegate these powers to other authorities where appropriate.

Lords Amendments 56, 58, 77 and 79

85 Lords Amendments 56, 58, 77 and 79 would clarify how the requirements for regulations made by devolved authorities acting alone under Schedule 2 to be within devolved competence interact with the principle of severance applied by the courts. They would make clear that when a provision within an instrument made by a devolved authority under Schedule 2 is outside of devolved competence, it is only that provision that would be ultra vires and not the instrument as a whole.

Lords Amendments 59 and 81

86 Lords Amendments 59 and 81 would lift the restrictions on devolved authorities using their powers in Schedule 2 to modify retained direct EU legislation, make changes that are inconsistent with UK Ministers’ modifications to retained direct EU legislation, or confer functions that correspond to the making of EU tertiary legislation. But they would also provide for such restrictions to be applied to these powers in areas specified by a UK Ministers under their powers in subsections 11(1)-(3C) and Part 1 of Schedule 3 for the purposes of limiting devolved competence in relation to retained EU law generally.

Lords Amendments 71

87 Lords Amendment 71 would remove the devolved authorities’ power to make regulations to comply with international obligations. This is in line with the removal of clause 8 from the Bill by Lords Amendment 18.

Lords Amendment 72

88 Lords Amendment 72 would prevent the power for devolved authorities to implement the withdrawal agreement from imposing or increasing fees. The power could still be used to repeal fees regimes that are no longer needed, reduce fees and make amendments to pre-exit powers to provide for fees and charges.

Lords Amendment 73

89 Lords Amendment 73 would prevent the power for devolved authorities to implement the withdrawal agreement from establishing public authorities.

Lords Amendment 80

90 Lords Amendment 80 would remove reference in Part 3 of Schedule 2 to the definition of devolved competence in Part 2 because those provisions would be removed by amendment 71. It would replace this with reference to the replicated definition of competence that would introduced by amendment 84.

Lords Amendments 82 and 83

91 Lords Amendments 82 and 83 would replace the requirement for devolved Ministers to have the consent of a Minister of the Crown to use the withdrawal agreement power in Schedule 2 to make provision relating to quotas with a requirement to consult a Minister of the Crown before using the power to make such provision.

Lords Amendment 84

92 Lords Amendment 84 would insert provisions into Part 3 of Schedule 2 to replicate the definition of devolved competence in Part of Schedule 2, which would be removed by amendment 71 as part of removing the power to make regulations to comply with international obligations.

 

Prepared 22nd May 2018