Explanatory Notes

Part 1: General consequential provision

513 As set out in the Withdrawal Agreement, the UK will stay closely aligned with the EU for the duration of the implementation period, from exit day until IP completion day. The Bill therefore makes provision for subordinate legislation which deals with the UK’s withdrawal from the EU (sometimes known as ‘EU exit SIs’) , to come into force by reference to IP completion day, so that domestic law does not diverge from EU law during the implementation period.

514 Paragraph 1(1) of this Schedule contains a general rule that ‘glosses’ (i.e. non-textually amends) the commencement dates in subordinate legislation made before exit day. The gloss will apply to subordinate legislation made under the EU (Withdrawal) Act 2018 or any other enactment, including where made under a sub-delegated power. The gloss will apply to subordinate legislation, which is due to come into force on, immediately before or after exit day (such as ‘three months after exit day’). This subordinate legislation will instead come into force at the end of the implementation period, either immediately before, on, or after IP completion day (such as ‘three months after IP completion day’).

515 The general rule will apply where the commencement date relates to all or part of that subordinate legislation or any other subordinate legislation which it provides for. It will therefore apply to either:

a. all of that subordinate legislation if the commencement date for all of that subordinate legislation is exit day (or immediately before or at any time after exit day, where it is by reference to exit day);

b. particular provisions of that subordinate legislation if there are different commencement dates for different provisions, with some entering into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day), and others entering into force on a different date; or

c. none of that subordinate legislation if none of the provisions of come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day).

516 As such, the general rule will not affect provisions in subordinate legislation that do not come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day). Further, whilst the general rule will bite on references to exit day ‘however expressed’, it will not bite on provisions which happen to commence on that day and/or time.

517 Paragraph 1(2) allows subordinate legislation to expressly disapply this gloss where required. This means regulations requiring exception that are laid alongside the Bill, or between the Bill passing and exit day, may be able to specifically provide for this.

518 Paragraph 1(3) contains a power for an appropriate authority (as defined in paragraph 1(6)) to make exceptions to the mass deferral, by disapplying or making different provision from the mass deferral in particular cases. For example, a Minister of the Crown, devolved authority or Minister of the Crown acting jointly with a devolved authority could exempt regulations fixing a deficiency under section 8(1) of the EU (Withdrawal) Act 2018 from the mass deferral, to provide that they will still come into force on exit day, where this is deemed appropriate.

519 Paragraph 1(4) refers the user to paragraph 2 of this Schedule for further provision about the power of devolved authorities to make regulations under paragraph 1(3).

520 Paragraph 1(5) sunsets the use of the power in paragraph 1(3) at one year after IP completion day, defined as 31 December 2020 at 11.00pm in clause 39.

521 Paragraph 1(6) defines ‘appropriate authority’ as a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.

522 Paragraph 2 provides that a devolved authority acting alone under the power in paragraph 1(3) may not make regulations that make different provisions for particular cases from the mass deferral or provide for the mass deferral to not apply where the devolved authority made the provision commencing the subordinate legislation to be excepted and, if so, would otherwise have the power to provide for the same effect as the exception (or they did so in the original instrument which is to be subject to the exception); or, if not, in cases where the devolved authority would have the power acting alone to make the commencement provision and the substantive subordinate legislation to be subject to the exception. Paragraph 2 also provides that a devolved authority may not make provision under paragraph 1(3) relating to the coming into force of regulations under section 23(1) or (6) of, or paragraph 1(2)(b) of Schedule 1 to the EU (Withdrawal) Act 2018. In certain cases where the devolved authority would otherwise have required the consent of a Minister of the Crown to make the provision under paragraph 1(3), such consent is also required for the devolved authority to exercise the power under paragraph 1(3) In all other cases, a devolved authority may not make provision under paragraph 1(3) unless they have consulted a Minister of the Crown.

523 Paragraph 3 makes the same provision as paragraph 1 but for primary legislation made by devolved authorities in preparation for exit day under the provisions in paragraph 41(3) to (5) of Schedule 8 to the EU (Withdrawal) Act 2018. Those provisions were commenced after the Supreme Court judgment in 'The UK Withdrawal From the European Union (Legal Continuity)(Scotland) Bill' reference, which decided that the Scottish Parliament had competence to legislate in preparation for EU exit because the requirement to legislate compatibly with EU law would cease on a specific date. The provisions in this Bill include the gloss of ‘exit day’ to ‘IP completion day’; the power to disapply or make different provision to the deferral; as well as the power to make appropriate provision, including re-stating the commencement date of such an enactment. sub-paragraphs (3) to (6) clarify that these powers can modify provisions in primary legislation as well as secondary legislation and that devolved authorities cannot use it outside of legislative competence.

524 Paragraph 4(1) clarifies that the consequential power in section 23(1) of the EU (Withdrawal) Act 2018 is capable of making consequential provision on the Act as amended (or to be amended) by or under the Bill. Further, it clarifies that references in the EU (Withdrawal) Act 2018 to the consequential power are read accordingly. Sub-paragraph (2) clarifies that sub-paragraph (1) does not limit the scope of the consequential power in clause 41(1) of this Bill. Sub-paragraph (3) clarifies that this includes amendments to provisions of the EU (Withdrawal) Act 2018 which make amendments to other legislation.

 

Prepared 19th December 2019