Explanatory Notes

Clause 4: Powers corresponding to section 3 involving devolved authorities

100 This clause inserts a new Part 1A, Supplementary powers in connection with implementation period, into Schedule 2 to the EU (Withdrawal) Act 2018. That Schedule confers on devolved authorities certain powers corresponding to powers conferred on a Minister of the Crown by the 2018 Act.

101 New paragraph 11A(1) of Schedule 2 to the EU (Withdrawal) Act contains a power for a devolved authority to make the following provision by regulations in connection with the implementation period:

a. to specify additional glosses for EU-related terms in EU-derived domestic legislation so that the statute book continues to function during the implementation period;

b. to disapply:

i. the glosses in new section 1B(3) which apply to EU-derived domestic legislation saved on exit day, so that EU-related terms can be read without the glosses;

ii. the application of the glosses by new section 1B(4) to EU-derived domestic legislation passed or made between exit day and IP completion day, so that EU-related terms can be read without the gloss;

c. to make different provision from new section 1B(3) to (4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;

d. to make provision, not covered by paragraphs (a) to (c) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. For example, there may be legislative references to the UK’s membership of or participation in EU bodies that are no longer meaningful during the implementation period and which should be removed.

102 New paragraph 11A(2) provides that a Minister of the Crown acting jointly with a devolved authority may by regulations make the following provision in connection with the implementation period:

a. to specify additional glosses for EU-related terms in EU-derived domestic legislation so that the statute book continues to function during the implementation period;

b. to disapply:

i. the glosses in new section 1B(3) which apply to EU-derived domestic legislation saved on exit day, so that EU-related terms can be read without the glosses;

ii. the application of the glosses by new section 1B(4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;

c. to make different provision from new section 1B(3) to (4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;

d. to make provision, not covered by paragraphs (a) to (c) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. For example, there may be legislative references to the UK’s membership of or participation in EU bodies that are no longer meaningful during the implementation period and which should be removed.

103 New paragraph 11A(3) provides that supplementary provision made under these powers might include modifying (such as amending, repealing or revoking) both primary and secondary legislation. The power may not be used to do all the things that an Act of Parliament can do.

104 New paragraph 11A(4) clarifies that the supplementary power may not be used to modify primary legislation passed or made after IP completion day (or subordinate legislation made under that primary legislation).

105 New paragraph 11A(5) sunsets the power so that no regulations may be made under this section after the end of the period of two years beginning with IP completion day.

106 New paragraph 11A(6) provides that regulations made by the devolved authorities acting alone under the power in paragraph 11A(1) are subject to the provisions of paragraphs 11B and 11C below.

No power to make provision outside devolved competence

107 New paragraph 11B provides that a devolved authority acting alone cannot exercise the power to make supplementary provision for the implementation period unless the provision is within devolved competence, as defined in paragraphs 11D to 11F.

Certain requirements for consent, joint exercise or consultation

108 New paragraph 11C provides that any requirements for consent, joint exercise or consultation with the UK Government will apply where the type of provision made by a devolved authority acting alone under this power would, if made under other powers, require UK Government consent, consultation or joint exercise of powers, as provided for in paragraphs 5 to 7 of Part 1 of Schedule 2 of the EU (Withdrawal) Act 2018.

Meaning of devolved competence: Part 1A

109 Paragraphs 11D, 11E and 11F define devolved competence in relation to the exercise of the power to make supplementary provision in connection with the implementation period.

 

Prepared 19th December 2019