Lords Amendments to Schedule 8: Consequential, transitional, transitory and saving provision

Lords Amendment 159

156 Lords Amendment 159 would provide glosses on how existing (pre-Royal Assent of this Bill) powers to make, confirm or approve subordinate legislation may operate on retained direct EU legislation and anything which is retained EU law by virtue of clause 4.

157 The amendment would broadly provide that existing powers that can amend primary legislation, can amend retained direct principal EU legislation (EU Regulations) and retained EU law by virtue of clause 4 and is subject to scrutiny procedure for amending primary legislation. Existing powers that are not capable of amending primary legislation can amend retained direct minor EU legislation (EU tertiary legislation and decisions), and the scrutiny procedure as if it were amending legislation made under a different power.

158 The amendment would also provide that existing powers that are not capable of amending primary legislation can amend retained direct principal EU legislation or anything which is retained EU law by virtue of clause 4 as a connected modifications (modifications which are supplementary, incidental, consequential, transitional, or transitory or saving to another modification retained direct minor EU legislation)) Where a modification is a connected modification the scrutiny procedures for the main provision would apply.

159 The amendment would provide that where provision is made under different powers that can amend primary legislation, they may be combined in the same instrument and that if there are different scrutiny procedures then the highest procedure would apply.

160 The amendment would also lift, on or after exit day, any implied EU law restriction which might otherwise attach to powers to make, confirm or approve subordinate legislation immediately before exit day.

161 The amendment would also allow anticipatory use of powers. This means that existing powers can be exercised before exit day to amend retained EU law if they come into force on or after exit day.

Lords Amendment 160

162 Lords Amendment 160 would provide glosses on how future (post-Royal Assent of this Bill) powers to make, confirm or approve subordinate legislation may operate on retained direct EU legislation and anything which is retained EU law by virtue of clause 4.

163 The amendment would provide that future powers to amend subordinate legislation can amend retained direct minor EU legislation.

164 The amendment would also provide that future powers to amend subordinate legislation can, context permitting, make connected modifications (modifications which are supplementary, incidental or consequential to the modification of retained direct minor EU legislation) to retained direct principle EU law or anything which is retained EU law by virtue of clause 4.

165 The amendment would provide that any power which can amend retained direct principal EU legislation would also be allowed to non-textually modify any retained direct EU legislation or anything that is retained EU law by virtue of clause 4.

166 The amendment would also allow anticipatory use of powers in Acts which are passed after and in the same session as this Bill. This means that such powers can be exercised before exit day to amend retained EU law if they come into force on or after exit day.

Lords Amendment 161

167 Lords Amendment 161 would require Ministers and other authorities making statutory instruments under powers outside the Bill after exit day that amend or revoke regulations made under section 2(2) of the European Communities Act 1972 to make a statement explaining the "good reasons" for the amendment or revocation, the law which is relevant to the amendment, and the effect of the amendment or revocation on retained EU law.

Lords Amendment 162

168 Lords Amendment 162 would require that the Scottish Ministers, when making statutory instruments under powers outside the Bill after exit day, make a statement explaining the "good reasons" for any amendment or revocation of regulations made under section 2(2) of the European Communities Act 1972, the law which is relevant to the amendment or revocation, and the effect of the amendment or revocation on retained EU law.

Lords Amendments 163 and 164

169 Lords Amendments 163 and 164 would insert into the Interpretation Act 1978 the definitions which would be created by Amendment 9.

Lords Amendment 165

170 Lords Amendment 165 would amend the numbering of a cross-reference in Schedule 8 in consequence of amendment 26.

Lords Amendments 166, 167, and 168

171 Lords Amendments 166, 167 and 168 would provide that retained direct principal EU legislation is to be treated as "primary legislation" for the purposes of the Human Rights Act 1998. This would include any amendments made to retained direct principal EU legislation. The amendments would provide that any retained minor EU legislation is to be treated as subordinate legislation except where it amends primary legislation.

Lords Amendment 170

172 Lords Amendment 170 would delay the prohibition on seeking Francovich damages in domestic law (in Schedule 1) for two years after exit day.

173 Francovich damages may be awarded in some circumstances where EU member states have to compensate individuals for damage that they suffer as a result of the state’s breach of EU law. EU law confers a right to reparation where 
the rule of law infringed is intended to confer rights on individuals, the breach is ‘sufficiently serious’, which means that the member state has manifestly and gravely disregarded the limits of its discretion, and where there is a direct causal link between the breach and the damage.

174 The Lords Amendment would ensure that, during this time period, the provisions in the Bill would not prevent individuals or businesses from continuing to seek such damages for cases where a breach of EU law occurred before exit day.

Lords Amendment 171

175 Lords Amendment 171 is consequential to the removal of clause 8 from the Bill by Lords Amendment 18.

Lords Amendment 172

176 Lords Amendment 172 would ensure the provisions made under the consequential power would not cease to operate along with the power itself and that the regulations continue in force.

Lords Amendments 173 to 176

177 Lords Amendments 173 to 176 would clarify that the amendments made by clause 11 and Part 1 of Schedule 3 do not affect the validity of devolved primary legislation receiving Royal Assent before exit day, or devolved subordinate legislation made before exit day.

Lords Amendments 177 to 195

178 Lords Amendments 177 to 195 would disapply the limit on devolved competence to legislate incompatibly with EU law in each of the devolution statutes for any devolved primary legislation that is to receive Royal Assent before exit day but which only comes into force on or after exit day.

179 The EU law limit on competence would also be disapplied for devolved subordinate legislation made, confirmed or approved before exit day but which only comes into force on or after exit day. These amendments would also provide for the restriction to be reapplied to such legislation in areas specified by a UK Minister under their powers in subsections 11(1) to (3C) and Part 1 of Schedule 3 for the purposes of limiting devolved competence in relation to retained EU law generally.

Lords Amendment 196

180 Lords Amendment 196 would ensure that any consent decisions made by the devolved legislatures before the Bill receives Royal Assent, or in relation to any draft instrument put to the devolved legislatures before that time, would count as a consent decision for the purposes of making regulations under the new powers in clause 11 and Schedule 3 Part 1. It would also allow the statutory 40 day period in those provisions to run from a date before the Bill receives Royal Assent.

EUROPEAN UNION (WITHDRAWAL) BILL

EXPLANATORY NOTES ON LORDS AMENDMENTS

These Explanatory Notes relate to the Lords Amendments to the European Union (Withdrawal) Bill as brought from the House of Lords on 16 May 2018.

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Ordered by the House of Commons to be printed, pursuant to Standing Order Nos. 78 and 57A, 16 May 2018
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