Explanatory Notes

Territorial extent and application

69 Clause 42 sets out the territorial extent of the Bill; that is the jurisdictions that the provisions in the Bill are intended to form part of the law.

70 This Bill extends to the whole of the UK. In addition, repeals and amendments made by the Bill have the same territorial extent as the legislation that they are repealing or amending. For example, section 1 of the EU (Withdrawal) Act 2018, which repeals the ECA, extends to Gibraltar and the three Crown Dependencies (the Channel Islands and the Isle of Man) to the extent that the ECA itself extended to those territories. This means the saving of the ECA in clause 1 (which will alter the effect of section 1 of the 2018 Act), will extend to those jurisdictions to the same extent as the original Act.

71 The power in section 36 of the Immigration Act 1971 or (as the case may be) section 60(4) of the UK Borders Act 2007 may also be exercised to extend to the Isle of Man or any of the Channel Islands the modifications made to that Act by clause 10 of the Bill.

72 Further, paragraphs 1 and 2 of Schedule 5, which provide for the deferral of subordinate legislation to the end of the implementation period, extend outside the UK to the extent that any subordinate legislation which they modify so extends.

73 Beyond this, as Gibraltar and the Crown Dependencies normally legislate for themselves to give effect to relevant obligations under international agreements - as is the case with Gibraltar under the Constitution of Gibraltar 2006 - the Bill does not extend to those territories.

74 The UK Parliament does not normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly without the consent of the legislature concerned. It is also the practice of the Government to seek the consent of the devolved legislatures for provisions which would alter the competence of those legislatures or the devolved administrations in Scotland, Wales and Northern Ireland.

75 The provisions for which the Government will seek legislative consent are set out in full at Annex A. In summary, they include the following provisions of the Bill:

a. The clause giving effect to the implementation period and related provisions, as this will alter the competence of the devolved administrations and legislatures;

b. The conferral on UK Ministers of supplementary powers to make provision in connection with the implementation period as this legislates in areas of devolved legislative competence;

c. The conferral on devolved authorities of supplementary powers to make provision in connection with the implementation period within devolved competence (as defined in the Bill), and amendments to the powers exercisable by the devolved authorities in Part 1 of Schedule 2 and Part 1 of Schedule 4 to the EU (Withdrawal) Act, as these will alter the competence of the devolved administrations;

d. Clauses 5 and 6 (general implementation of the remainder of the Withdrawal Agreement and of related EEA EFTA separation agreements) as these alter the competence of the devolved institutions and legislate in areas of devolved legislative competence;

e. In relation to the citizens’ rights provisions in the Bill, the conferral on the UK Ministers and devolved authorities of powers to make provision within devolved competence (as defined in the Bill) in relation to social security co-ordination (for Wales only in the context of reciprocal healthcare), mutual recognition of professional qualifications and equal treatment, as these will alter the competence of the devolved administrations and legislate in areas of devolved legislative competence;

f. The clauses establishing the Independent Monitoring Authority (IMA), as these alter the competence of the devolved administrations and legislate in areas of devolved legislative competence;

g. The conferral on UK Ministers of a power to implement the other separation issues as this legislates in areas of devolved legislative competence;

h. The conferral on the devolved authorities of a power to implement the other separation issues so far as that is within devolved competence (as defined in the Bill), as this will alter the competence of the devolved administrations;

i. The financial provision in clause 20 as this modifies the competence of the devolved administrations;

j. The conferral on UK Ministers of a power to implement the Protocol on Ireland/Northern Ireland as this legislates in areas of devolved legislative competence; the conferral on the devolved authorities of a power to implement the Protocol on Ireland/Northern Ireland, as this will alter the competence of the devolved administrations;

k. The conferral on the devolved authorities of ancillary fee charging powers as these will alter the competence of the devolved administrations; and

l. Provisions in Schedule 5 including:

i. giving effect to the mass deferral of statutory instruments which come into force by reference to exit day, and conferring on devolved authorities the power to disapply or make different provision in particular cases. These provisions legislate within areas of devolved competence and will alter the competence of the devolved administrations; and

ii. the provision dealing with the protected enactment status of amendments to the EU (Withdrawal) Act, as this will modify the competence of the devolved legislatures.

76 See the table in Annex A for a summary of the position regarding territorial extent and application in the United Kingdom. The table also summarises the position regarding legislative consent motions and matters relevant to Standing Orders Nos. 83J to 83X of the Standing Orders of the House of Commons relating to Public Business.

 

Prepared 19th December 2019