Session 2017-19
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Other Bills before Parliament


 
 

46

 
 

            

is to be subject to the same procedure (if any) before Parliament, the

 

Scottish Parliament, the National Assembly for Wales or the Northern

 

Ireland Assembly as would apply to that legislation if it were amending

 

or revoking an enactment contained in subordinate legislation made

 

under a different power.

 

      (4)  

Any subordinate legislation which—

 

(a)    

is, or is to be, made, confirmed or approved by virtue of

 

paragraph 3A, and

 

(b)    

modifies (otherwise than as a connected modification and

 

otherwise than by way of amending or revoking it) any retained

 

direct minor EU legislation,

 

            

is to be subject to the same procedure (if any) before Parliament, the

 

Scottish Parliament, the National Assembly for Wales or the Northern

 

Ireland Assembly as would apply to that legislation if it were amending

 

or revoking an enactment contained in subordinate legislation made

 

under a different power.

 

      (5)  

Any subordinate legislation which—

 

(a)    

is, or is to be, made, confirmed or approved by virtue of

 

paragraph 3A, and

 

(b)    

modifies as a connected modification any retained direct EU

 

legislation or anything which is retained EU law by virtue of

 

section 4,

 

            

is to be subject to the same procedure (if any) before Parliament, the

 

Scottish Parliament, the National Assembly for Wales or the Northern

 

Ireland Assembly as would apply to the modification to which it is

 

connected.

 

      (6)  

Any provision which may be made, confirmed or approved by virtue of

 

paragraph 3A may be included in the same instrument as any other

 

provision which may be so made, confirmed or approved.

 

      (7)  

Where more than one procedure of a kind falling within sub-paragraph

 

(8) would otherwise apply in the same legislature for an instrument

 

falling within sub-paragraph (6), the higher procedure is to apply in the

 

legislature concerned.

 

      (8)  

The order of procedures is as follows (the highest first)—

 

(a)    

a procedure which requires a statement of urgency before the

 

instrument is made and the approval of the instrument after it is

 

made to enable it to remain in force,

 

(b)    

a procedure which requires the approval of the instrument in

 

draft before it is made,

 

(c)    

a procedure not falling within paragraph (a) which requires the

 

approval of the instrument after it is made to enable it to come

 

into, or remain in, force,

 

(d)    

a procedure which provides for the annulment of the instrument

 

after it is made,

 

(e)    

a procedure not falling within any of the above paragraphs

 

which provides for the laying of the instrument after it is made,

 

(f)    

no procedure.

 
 

 


 
 

47

 
 

      (9)  

The references in this paragraph to amending or repealing an enactment

 

contained in primary legislation or amending or revoking an enactment

 

contained in subordinate legislation do not include references to

 

amending or repealing or (as the case may be) amending or revoking an

 

enactment contained in any Northern Ireland legislation which is an

 

Order in Council.

 

    (10)  

In this paragraph “connected modification” means a modification which

 

is supplementary, incidental, consequential, transitional or transitory, or

 

a saving, in connection with—

 

(a)    

another modification under the power of retained direct EU

 

legislation or anything which is retained EU law by virtue of

 

section 4, or

 

(b)    

anything else done under the power.

 

3C  (1)  

This paragraph applies to any power to make, confirm or approve

 

subordinate legislation—

 

(a)    

which was conferred before the day on which this Act is passed,

 

and

 

(b)    

is not capable of being exercised as mentioned in paragraph

 

3A(1)(b) or is only capable of being so exercised in relation to

 

Northern Ireland legislation which is an Order in Council.

 

      (2)  

Any power to which this paragraph applies (other than a power to

 

which sub-paragraph (4) applies) is to be read—

 

(a)    

so far as is consistent with any retained direct principal EU

 

legislation or anything which is retained EU law by virtue of

 

section 4, and

 

(b)    

so far as the context permits or requires,

 

            

as being capable of being exercised to modify (or, as the case may be,

 

result in the modification of) any retained direct minor EU legislation.

 

      (3)  

Any power to which this paragraph applies (other than a power to

 

which sub-paragraph (4) applies) is to be read, so far as the context

 

permits or requires, as being capable of being exercised to modify (or, as

 

the case may be, result in the modification of)—

 

(a)    

any retained direct principal EU legislation, or

 

(b)    

anything which is retained EU law by virtue of section 4,

 

            

so far as the modification is supplementary, incidental or consequential

 

in connection with any modification of any retained direct minor EU

 

legislation by virtue of sub-paragraph (2).

 

      (4)  

Any power to which this paragraph applies so far as it is a power to

 

make, confirm or approve transitional, transitory or saving provision is

 

to be read, so far as the context permits or requires, as being capable of

 

being exercised to modify (or, as the case may be, result in the

 

modification of)—

 

(a)    

any retained direct EU legislation, or

 

(b)    

anything which is retained EU law by virtue of section 4.

 

3D         

Any subordinate legislation which is, or is to be, made, confirmed or

 

approved by virtue of paragraph 3C(2), (3) or (4) is to be subject to the

 

same procedure (if any) before Parliament, the Scottish Parliament, the

 

National Assembly for Wales or the Northern Ireland Assembly as

 

would apply to that legislation if it were doing anything else under the

 

power.

 
 

 


 
 

48

 
 

3E         

Any power to make, confirm or approve subordinate legislation which,

 

immediately before exit day, is subject to an implied restriction that it is

 

exercisable 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.

 

3F  (1)  

Paragraphs 3A to 3E and this paragraph—

 

(a)    

do not prevent the conferral of wider powers,

 

(b)    

do 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 (or would apply

 

when in force on and after exit day), and

 

(c)    

are subject to any other provision made by or under this Act or

 

any other enactment.

 

      (2)  

For the purposes of paragraphs 3A and 3C—

 

(a)    

a power is conferred whether or not it is in force, and

 

(b)    

a power in retained direct EU legislation is not conferred before

 

the day on which this Act is passed.

 

      (3)  

A power which, by virtue of paragraph 3A or 3C or any Act of

 

Parliament passed before, and in the same Session as, this Act, is capable

 

of being exercised to modify any retained EU law is capable of being so

 

exercised before exit day so as to come into force on or after exit day.”

 

160

Page 56, line 26, leave out paragraph 5 and insert—

 

“5A(1)  

This paragraph applies to any power to make, confirm or approve

 

subordinate legislation which is conferred on or after the day on which

 

this Act is passed.

 

      (2)  

Any power to which this paragraph applies (other than a power to

 

which sub-paragraph (4) applies) may—

 

(a)    

so far as is consistent with any retained direct principal EU

 

legislation or anything which is retained EU law by virtue of

 

section 4, and

 

(b)    

so far as applicable and unless the contrary intention appears,

 

            

be exercised to modify (or, as the case may be, result in the modification

 

of) any retained direct minor EU legislation.

 

      (3)  

Any power to which this paragraph applies (other than a power to

 

which sub-paragraph (4) applies) may, so far as applicable and unless

 

the contrary intention appears, be exercised to modify (or, as the case

 

may be, result in the modification of)—

 

(a)    

any retained direct principal EU legislation, or

 

(b)    

anything which is retained EU law by virtue of section 4,

 

            

so far as the modification is supplementary, incidental or consequential

 

in connection with any modification of any retained direct minor EU

 

legislation by virtue of sub-paragraph (2).

 
 

 


 
 

49

 
 

      (4)  

Any power to which this paragraph applies so far as it is a power to

 

make, confirm or approve transitional, transitory or saving provision

 

may, so far as applicable and unless the contrary intention appears, be

 

exercised to modify (or, as the case may be, result in the modification

 

of)—

 

(a)    

any retained direct EU legislation, or

 

(b)    

anything which is retained EU law by virtue of section 4.

 

5B  (1)  

Sub-paragraph (2) applies to any power to make, confirm or approve

 

subordinate legislation which—

 

(a)    

is conferred on or after the day on which this Act is passed, and

 

(b)    

is capable of being exercised to amend or revoke (or, as the case

 

may be, result in the amendment or revocation of) any retained

 

direct principal EU legislation.

 

      (2)  

The power may, so far as applicable and unless the contrary intention

 

appears, be exercised—

 

(a)    

to modify otherwise than by way of amendment or revocation

 

(or, as the case may be, result in such modification of) any

 

retained direct principal EU legislation, or

 

(b)    

to modify (or, as the case may be, result in the modification of)

 

anything which is retained EU law by virtue of section 4.

 

5C  (1)  

Paragraphs 5A and 5B and this paragraph—

 

(a)    

do not prevent the conferral of wider powers,

 

(b)    

do 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 (or would apply

 

when in force on and after exit day), and

 

(c)    

are subject to any other provision made by or under this Act or

 

any other enactment.

 

      (2)  

For the purposes of paragraphs 5A and 5B—

 

(a)    

a power is conferred whether or not it is in force,

 

(b)    

a power in retained direct EU legislation is conferred on or after

 

the day on which this Act is passed, and

 

(c)    

the references to powers conferred include powers conferred by

 

regulations under this Act (but not powers conferred by this Act).

 

      (3)  

A power which, by virtue of paragraph 5A or 5B or any Act of

 

Parliament passed after, and in the same Session as, this Act, is capable

 

of being exercised to modify any retained EU law is capable of being so

 

exercised before exit day so as to come into force on or after exit day.”

 

161

Page 56, line 32, at end insert—

 

“Explanatory statements for instruments amending or revoking regulations etc. under

 

section 2(2) of the ECA

 

5D  (1)  

This paragraph applies where, on or after exit day—

 

(a)    

a statutory instrument which amends or revokes any

 

subordinate legislation made under section 2(2) of the European

 

Communities Act 1972, or

 

(b)    

a draft of such an instrument,

 
 

 


 
 

50

 
 

            

is to be laid before each House of Parliament or before the House of

 

Commons only.

 

      (2)  

Before the instrument or draft is laid, the relevant authority must make

 

a statement as to why, in the opinion of the relevant authority, there are

 

good reasons for the amendment or revocation.

 

      (3)  

Before the instrument or draft is laid, the relevant authority must make

 

a statement otherwise explaining—

 

(a)    

the law which is relevant to the amendment or revocation, and

 

(b)    

the effect of the amendment or revocation on retained EU law.

 

      (4)  

If the relevant authority fails to make a statement required by sub-

 

paragraph (2) or (3) before the instrument or draft is laid—

 

(a)    

a Minister of the Crown, or

 

(b)    

where the relevant authority is not a Minister of the Crown, the

 

relevant authority,

 

            

must make a statement explaining why the relevant authority has failed

 

to make the statement as so required.

 

      (5)  

A statement under sub-paragraph (2), (3) or (4) must be made in writing

 

and be published in such manner as the person making it considers

 

appropriate.

 

      (6)  

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.

 

      (7)  

This paragraph applies in relation to instruments whether the power to

 

make them is conferred before, on or after exit day including where the

 

power is conferred by regulations under this Act (but not where it is

 

conferred by this Act).

 

      (8)  

This paragraph does not apply in relation to any laying before each

 

House of Parliament, or before the House of Commons only, of an

 

instrument or draft instrument where an equivalent draft instrument

 

(ignoring any differences relating to procedure) has previously been laid

 

before both Houses or before the House of Commons only.

 

      (9)  

In this paragraph “the relevant authority” means—

 

(a)    

in the case of an Order in Council or Order of Council, the

 

Minister of the Crown who has responsibility in relation to the

 

instrument,

 

(b)    

in the case of any other statutory instrument which is not made

 

by a Minister of the Crown, the person who makes, or is to make,

 

the instrument, and

 

(c)    

in any other case, the Minister of the Crown who makes, or is to

 

make, the instrument.”

 

162

Page 56, line 32, at end insert—

 

“5E(1)  

This paragraph applies where, on or after exit day—

 

(a)    

a Scottish statutory instrument which amends or revokes any

 

subordinate legislation made under section 2(2) of the European

 

Communities Act 1972, or

 

(b)    

a draft of such an instrument,

 
 

 


 
 

51

 
 

            

is to be laid before the Scottish Parliament.

 

      (2)  

Before the instrument or draft is laid, the relevant authority must make

 

a statement as to why, in the opinion of the relevant authority, there are

 

good reasons for the amendment or revocation.

 

      (3)  

Before the instrument or draft is laid, the relevant authority must make

 

a statement otherwise explaining—

 

(a)    

the law which is relevant to the amendment or revocation, and

 

(b)    

the effect of the amendment or revocation on retained EU law.

 

      (4)  

If the relevant authority fails to make a statement required by sub-

 

paragraph (2) or (3) before the instrument or draft is laid, the relevant

 

authority must make a statement explaining why the relevant authority

 

has failed to make the statement as so required.

 

      (5)  

A statement under sub-paragraph (2), (3) or (4) must be made in writing

 

and be published in such manner as the relevant authority considers

 

appropriate.

 

      (6)  

This paragraph applies in relation to instruments whether the power to

 

make them is conferred before, on or after exit day including where the

 

power is conferred by regulations under this Act (but not where it is

 

conferred by this Act).

 

      (7)  

In this paragraph “the relevant authority” means—

 

(a)    

in the case of a Scottish statutory instrument which is not made

 

by the Scottish Ministers, other than an Order in Council, the

 

person who makes, or is to make, the instrument, and

 

(b)    

in any other case, the Scottish Ministers.”

 

163

Page 59, line 31, after “law”” insert “, “retained direct minor EU legislation”,

 

“retained direct principal EU legislation””

 

164

Page 59, line 33, after “6(7)” insert “, (Status of retained EU law)(6)”

 

165

Page 60, line 38, leave out “29(4A)” and insert “30A(1)”

 

166

Page 61, line 2, at beginning insert “This paragraph has effect”

 

167

Page 61, line 2, leave out from “1998” to end of line 4 and insert—

 

    “( )  

Any retained direct principal EU legislation is to be treated as primary

 

legislation.

 

      ( )  

Any retained direct minor EU legislation is to be treated as primary

 

legislation so far as it amends any primary legislation but otherwise is to

 

be treated as subordinate legislation.”

 

168

Page 61, line 5, leave out “sub-paragraph (1)” and insert “this paragraph “amend”,”

 
 

 


 
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Revised 16 May 2018