Explanatory Notes

Clause 22: Powers corresponding to section 21 involving devolved authorities

261 This clause provides a corresponding power to that at clause 21 allowing devolved authorities to make regulations to implement the Protocol in areas of devolved competence, inserting a new Part 1C into Schedule 2 to the EU (Withdrawal) Act 2018.

262 Paragraph 11M(1) provides devolved authorities with the power to make legislative changes which they consider appropriate for the purposes of implementing the Protocol. This includes supplementing the effect of section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill) in relation to the Protocol or dealing with matters arising out of, or related to, the Protocol. It also includes giving effect to amendments to the Withdrawal Agreement adopted by the Joint Committee falling within the scope of the particular matters that this power is intended to address.

263 Paragraph 11M(2) provides that this power can be used by a Minister of the Crown and a devolved administration acting jointly.

264 Paragraph 11M(3) provides that regulations made under this power are capable of doing anything an Act of Parliament can do, subject to the restrictions specified in subsection (7).

265 Paragraph 11M(4) clarifies that the power may be used to make provision facilitating the access of qualifying Northern Ireland goods to the market within GB.

266 Paragraph 11M(5) clarifies that regulations made under subsection (3) may, among other things, provide for the recognition within Great Britain of technical regulations, assessments, registrations, certificates, approvals and authorisations issued by the authorities of a Member State or bodies established in a Member State in respect of qualifying Northern Ireland goods.

267 Paragraph 11M(6) clarifies that the power can be used to restate elements of the Protocol that automatically become domestic law via clause 5 of this Bill. This type of restatement can occur where it would be helpful to provide clarity or to make the law more accessible.

268 Paragraph 11M(7) makes the use of this power subject to the provisions of paragraph 11N (restricting the power to being exercisable only in areas of devolved competence) and paragraph 11O (certain requirements for consent, joint exercise or consultation) of the same schedule of the EU (Withdrawal) Act 2018.

269 Paragraph 11M(8) defines the Protocol for the purposes of the section as including any other provision of the Withdrawal Agreement that relates to the Protocol, and any provisions of EU law applied by, or referred to in the Protocol, but excludes the second sentence of Article 13(1) of the Protocol.

270 Paragraph 11N provides that the power to implement the Protocol cannot be used outside of devolved competence, as defined in paragraphs 11P to 11R, where exercised by devolved authorities acting alone.

271 Paragraph 11O provides that, where a devolved authority is making a provision for the purposes of implementing the Protocol, the requirements for consent, joint exercise or consultation with the UK Government will apply where the type of provision would, if made under other powers, require UK Government consent, consultation or joint exercise of powers.


Prepared 22nd October 2019