Explanatory Notes

Schedule 1: Powers of devolved authorities under sections 12, 13 and 14


No power to make provision outside devolved competence

361 Paragraph 1 provides that the powers in respect of social security co-ordination, recognition of professional qualifications and equal treatment under clauses 12, 13 or 14 cannot be used outside of devolved competence, where exercised by devolved authorities acting alone. This maintains the status quo in respect of the competence of the devolved authorities and ability to act in these areas.

362 Paragraph 2 relates to the competence of Scottish Ministers. Sub-paragraph (a) relates to legislative competence and sets out that the Scottish Ministers may exercise these powers where the Scottish Parliament has legislative competence. The definition of ‘legislative competence’ for the purposes of exercising these powers disapplies the normal restriction on the Scottish Parliament’s competence, which prevents the Scottish Parliament from legislating in a way that is incompatible with EU law. This disapplication is necessary to enable the Scottish Ministers to make all necessary regulations under these powers in devolved areas.

363 Sub-paragraph (b) relates to those secondary legislation-making powers which are not within legislative competence but are within the executive competence of the Scottish Ministers. The definition of ‘executive competence’ for the purposes of exercising these powers disapplies the normal restriction on the Scottish Ministers’ competence which prevents the Scottish Ministers from legislating in a way that is incompatible with EU law. The restrictions relating to retained EU law are also disapplied for the purposes of defining legislative and executive competence.

364 Paragraph 3 relates to the competence of the Welsh Ministers and makes the same provision for the Welsh Ministers as for the Scottish Ministers as set out in paragraph 2. The Welsh Ministers will be able to exercise these powers in areas within the National Assembly for Wales’ legislative competence (disapplying the restrictions preventing the National Assembly for Wales from legislating in a way that is incompatible with EU law or from modifying retained EU law) and to amend legislation which has been made under their executive competence.

365 Paragraph 4 relates to the competence of Northern Ireland departments. Sub-paragraph (a) deals with transferred matters, providing that Northern Ireland devolved authorities may make regulations using the power in any areas which would be within the Northern Ireland Assembly’s legislative competence and which would not require consent of the Secretary of State for Northern Ireland. Sub-paragraph (b) deals with reserved matters, providing that where Northern Ireland legislation has previously been made in relation to reserved matters, Northern Ireland departments and Ministers will be able to use the power to amend this legislation. In both sub-paragraphs (a) and (b) the existing restrictions on legislative competence that would make it outside of legislative competence to act in a way that is incompatible with EU law, or to modify retained EU law, are disapplied in defining legislative competence for the purpose of these powers. Sub-paragraph (c) makes the same provision as for Scottish and Welsh Ministers so that Northern Ireland departments can exercise the power to amend legislation which has been made under their executive competence.

Requirement for consent where it would otherwise be required

366 Paragraph 5 sets out that if a devolved authority is making a provision using these powers that would require consent if it were a provision in legislation of the relevant devolved legislature or where the devolved administration would normally require consent to make such a provision via secondary legislation, then that consent will still be required. This will not apply if the devolved authority already has power to make such provision using secondary legislation without needing the consent of the Minister of the Crown.

Requirement for joint exercise where it would otherwise be required

367 Paragraph 6 sets out that where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the power.

Requirement for consultation where it would otherwise be required

368 Paragraph 7 requires consultation with the UK Government on legislation made by a devolved authority in the exercise of the power, where the devolved authority would normally be required to consult with the UK Government when making those kind of changes in legislation.

Interpretation

369 Paragraph 8 defines a Northern Ireland devolved authority as the First Minister and deputy First Minister in Northern Ireland acting jointly, a Northern Ireland Minister, or a Northern Ireland department.

 

Prepared 19th December 2019