Explanatory Notes

Part 2: Specific Consequential Provision

Interpretation Act (Northern Ireland) 1954 (c.33 (NI))

525 Paragraphs 5 to 7 amend the Interpretation Act (Northern Ireland) 1954 to reflect that the UK will enter an implementation period after exit day.

526 Paragraph 5 introduces the amendments to the Interpretation Act (Northern Ireland) 1954.

527 Paragraph 6 amends Section 11 of that Act to substitute all references to ‘exit day’ in subsections (1C), (1D) and (1E) to read instead ‘IP completion day’.

528 Paragraph 7 amends section 44A of that Act, concerning definitions relating to the UK’s withdrawal from the EU, to insert definitions for ‘EU withdrawal agreement’ and ‘IP completion day’. It also substitutes the reference to ‘exit day’ in the definition of ‘retained EU obligation’ to read instead ‘IP completion day’.

Interpretation Act 1978

529 Paragraphs 8 to 12 amend the Interpretation Act 1978 to reflect that the UK will enter an implementation period after exit day.

530 Paragraph 8 introduces the amendments to the Interpretation Act.

531 Paragraph 9 amends section 20(3) (references to other enactments) of the Interpretation Act which will be inserted by the EU (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2018. Section 20(3) of the Interpretation Act will make interpretative provision for references on or after exit day to EU instruments which form part of domestic law by virtue of section 3 of the EU (Withdrawal) Act 2018. This will be amended to instead provide for references on or after IP completion day.

532 Paragraph 10 amends the definition of subordinate legislation in section 21(1) of the Interpretation Act to include instruments of the same nature made on or after IP completion day under any retained direct EU legislation. Paragraph 19 of Schedule 8 to the EU (Withdrawal) Act 2018 amended the definition to include such instruments made on or after exit day. In light of direct EU legislation being retained on IP completion day, paragraph 7 of this Schedule amends this definition so it refers to IP completion day instead.

533 Paragraph 11 amends section 23ZA(4)(a)(ii) of the Interpretation Act, which is inserted into the Act by paragraph 20 of Schedule 8 of the EU (Withdrawal) Act 2018. This means the definition of ‘commencement’ in Schedule 1 of the Interpretation Act will apply to instruments made under any retained direct EU legislation on or after IP completion day rather than exit day. As such, where legislation refers to the commencement of these instruments (and the Interpretation Act definition applies) it means the time when the instrument comes into force.

534 Paragraph 12 adds a number of words and expressions to Schedule 1 to the Interpretation Act. It adds definitions for the ‘EU withdrawal agreement’ and ‘IP completion day’ (which have the same meaning as provided for in the Bill). Further, it amends the definition of ‘retained EU obligation’ so that it refers to IP completion day rather than exit day, to reflect that retained EU law will not be preserved until IP completion day. It also amends the definition of ‘EU Treaties’ or ‘the EU Treaties’ so that it refers to the treaties which apply under the saved ECA immediately before IP completion day.

European Economic Area Act 1993

535 Paragraphs 13 to 16 make technical amendments to changes to the European Economic Area Act 1993 made by the EU (Withdrawal) Act 2018. These amendments are necessary as the existing international agreements between the UK and the EEA EFTA states will be preserved for the duration of the implementation period.

536 Paragraphs 14 and 15 amend section 2 and 3 of the European Economic Area Act. These sections ensure that domestic legislation that was in force prior to the entry into force of the EEA Agreement in 1993 is read consistently with the provisions of that Agreement. Paragraphs 14 and 15 ensure that the modifications made to sections 2 and 3 will continue to operate appropriately in light of the implementation period.

537 Paragraph 16 makes a consequential amendment to section 6 of the European Economic Area Act in light of the temporary saving of the ECA.

Scotland Act 1998

538 Paragraphs 17 to 21 make technical amendments to changes to the Scotland Act 1998 made by the EU (Withdrawal) Act 2018 to reflect that the UK will remain aligned with EU law for the duration of the implementation period. Paragraph 20 sets out the amendments made by this Bill to the EU (Withdrawal) Act 2018 that are not protected from modification.

Northern Ireland Act 1998

539 Paragraphs 22 to 23 and 25 to 26 make technical amendments to changes to the Northern Ireland Act 1998 made by the EU (Withdrawal) Act 2018 to reflect that the UK will remain aligned with EU law for the duration of the implementation period.

540 Paragraph 24 sets out the amendments made by this Bill to the EU (Withdrawal) Act 2018 that are excluded from entrenchment.

Government of Wales Act 2006

541 Paragraphs 27 to 31 make technical amendments to changes to the Government of Wales Act 2006 made by the EU (Withdrawal) Act 2018 to reflect that the UK will remain aligned with EU law for the duration of the implementation period. Paragraph 31 sets out the amendments made by this Bill to the EU (Withdrawal) Act 2018 that are not protected from modification.

Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)

542 Paragraphs 32 to 37 amend the Interpretation and Legislative Reform (Scotland) Act 2010 (‘ILRA’).

543 Paragraph 32 introduces amendments to the ILRA.

544 Paragraph 33 amends the changes made by the EU (Withdrawal) Act 2018 to the definition of ‘Scottish instruments’ in Part 1 of the ILRA. This ensures that the various rules of interpretation in Part 1 of the ILRA will apply to instruments made after IP completion day, rather than exit day, under a combination of powers in an Act of the Scottish Parliament and in retained direct EU legislation.

545 Paragraph 34 amends changes made by the EU (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2018 to section 14 ILRA. This ensures that there is interpretative provision for references on or after IP completion day to EU instruments which form part of domestic law by virtue of section 3 of the EU (Withdrawal) Act 2018.

546 Paragraph 35 amends changes made by paragraph 33 of Schedule 8 to the EU Withdrawal Act 2018. It omits an obsolete reference to Regulations made under Part 2 of Schedule 2 of the EU Withdrawal Act 2018. Part 2 of Schedule 2 (implementing the withdrawal agreement) of EUWA is repealed by Clause 36 (repeal of unnecessary or spent enactments) of EU (Withdrawal Agreement) Bill.

547 Paragraph 36 amends changes made by the EU (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2018 to section 55 ILRA. This ensures that definitions within the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc of Acts of the Scottish Parliament) Order 1999 (S.I. 1999/1379) reflect the Withdrawal Agreement and Bill.

548 Paragraph 37 amends changes made to the definitions in Schedule 1 of the ILRA by the EU (Withdrawal) Act 2018 and the EU (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2018. This ensures that the definitions reflect the Withdrawal Agreement and Bill.

European Union (Withdrawal) Act 2018

549 Paragraph 38 introduces a further set of amendments to the EU (Withdrawal) Act 2018.

550 Paragraph 39 amends the heading above section 2 of that Act from ‘existing EU law’ to ‘saved EU law at the end of implementation period’.

551 Paragraph 40 amends section 7 of that Act, on the status of retained EU law, as follows:

a. sub-paragraph (1) introduces the amendments to come;

b. sub-paragraph (2) amends section 7(1) of that Act so that it refers instead to the savings made on exit day by sections 1A(2) and 1B(2) of the revised Act. The amended section 7(1) then clarifies that the ECA and EU-derived legislation will continue as legislation of the same type as they were before exit day;

c. sub-paragraph (3) inserts new subsection (1A), which clarifies that any EU-derived domestic legislation that is saved by section 2 of the Act will continue as legislation of the same type as it was before IP completion day;

d. sub-paragraph (4) amends section 7(5) of that Act, which signposts provisions about the status of retained EU law in other provisions of the Act, to reflect other amendments to the Act; and

e. sub-paragraph (5) amends references to ‘exit day’ to ‘IP completion day’ to reflect that retained direct EU legislation will be retained on IP completion day instead of exit day.

552 Sub-paragraphs 41(1) and 41(2) amends the heading before section 10 of the EU (Withdrawal) Act 2018, whilst sub-paragraph 41(3) amends section 10 to protect the Belfast (Good Friday) Agreement 1998 without reference to its definition in section 98 of the Northern Ireland Act 1998.

553 Paragraph 42 amends the heading and text for section 11 of the EU (Withdrawal) Act 2018, in consequence of the devolved authorities being granted corresponding powers to sections 8B, and 8C.

554 Paragraph 43 changes the heading in section 13 to reflect the insertion of new section 13A. Paragraph 43 changes the heading at section 13 from ‘approval of outcome of EU negotiations’ to ‘oversight of withdrawal’.

555 Paragraph 44 amends section 20 of the EU (Withdrawal) Act 2018:

a. paragraph 44(1) introduces the amendments to that section;

b. paragraph 44(2) amends section (20)(1):

i. paragraph 44(2)(a) inserts a definition of ‘Commons sitting day’;

ii. paragraph 44(2)(b) amends the definition of ‘domestic law’, so that the references in new section 7A and 7B refer to the law of England and Wales, Scotland and Northern Ireland;

iii. paragraph 44(2)(c) amends the definition of ‘enactment’ so that references to this in new Section 1B of the EU (Withdrawal) Act 2018 will not include retained direct EU legislation;

iv. paragraph 44(2)(d) inserts a definition of ‘Joint Committee’ and ‘Lords sitting day’;

v. paragraph 44(2)(e) inserts a definition of ‘ratify’;

vi. paragraph 44(2)(f) amends the definition of ‘retained direct EU legislation’ so that it refers to IP completion day rather than exit day;

vii. paragraph 44(2)(g) amends the definition of ‘subordinate legislation’, so that it refers to IP completion day rather than exit day; and

viii. paragraph 44(2)(h) removes the definition of the Withdrawal Agreement currently in that section of the EU (Withdrawal) Act 2018.

c. Paragraph 44(3) inserts a new subsection 5A into section 20 of that Act. New subsection 5A(a) makes clear that any references to anything that continues to be law by virtue of section 1B(2) (the saving of EU-derived domestic legislation for the implementation period) includes modifications to that legislation from time to time. Subsection 5A also acknowledges that some of the legislation ‘saved’ by new section 1B would survive repeal of the ECA and withdrawal from the EU in any event. Subsection 5A(b) provides that references in the Bill to things which continue to be domestic law, includes things which would have continued to exist regardless of the saving in new section 1B(2). This makes clear that it is not necessary to consider whether an enactment might have been subject to implied repeal or revocation on exit day, in order to bring it within the ambit of new section 1B(2).

d. Paragraph 44(4) amends section 20(6) of the EU (Withdrawal) Act 2018 so as to amend the reference to ‘exit day’ in that section to read ‘IP completion day’. This makes clear that it is not necessary to consider whether an enactment might have been subject to implied repeal or revocation on IP completion day, to bring it within the ambit of section 2 of the Act and the definition of ‘retained EU law’.

556 Paragraph 45 amends section 21(1) (index of defined expressions) of the EU (Withdrawal) Act 2018. Section 21 lists various expressions used throughout the Act and the corresponding provision at which their meaning is located. For ease of reference, the index also includes pointers to certain provisions in the Interpretation Act 1978 (i.e. those which are restated by the Act). The Interpretation Act 1978 contains other definitions which are also relevant to the Act. Paragraph 45 amends the index at section 21 to include the new definitions in the amended Act and the corresponding provision at which their meaning is located.

557 Paragraph 46 amends section 23 of the EU (Withdrawal) Act 2018 on consequential and transitional provisions:

a. paragraph 46(1) introduces the amendments;

b. paragraph 46(2) amends section 23(3) so to provide that Ministers cannot make consequential provision which amends primary legislation (or secondary legislation made under that primary legislation) passed after IP completion day;

c. paragraph 46(3) amends section 23(4) to make clear that the temporary power in subsection (1) can only be used for up to ten years after IP completion day as it expires at that point;

d. paragraph 46(4) amends section 23(6) so that the transitional, transitory and savings power can make provision in connection with the coming into force date of any provision of the Act including its operation in connection with IP completion day.

558 Paragraph 47 amends Schedule 4 (powers in connection with fees and charges);

a. paragraph 47(1) introduces the amendments to Schedule 4;

b. paragraph 47(2) amends paragraph 1(1) of Schedule 4 by omitting paragraph 1(b) and the word "or" before it.

c. paragraph 47(3) amends paragraph 5(1) of Schedule 4 so to be clear that the temporary power in paragraph 1 of Schedule 4 (the power to provide for fees or charges) can only be used for up to two years after IP completion day, instead of exit day. It will expire at that point;

d. paragraph 47(4) makes supplementary amendments to references;

e. paragraph 47(5) amends paragraph (8)(a) to explain that an appropriate authority (means a Minister of Crown or devolved authority) is defined as one that could have made a modification under the ECA prior to IP completion day, instead of exit day; and

f. paragraph 47(6) makes supplementary amendments to references;

559 Paragraph 48 amends Schedule 5 (publication and rules of evidence):

a. paragraph 48(1) introduces the amendments to Schedule 5;

b. paragraph 48(2) substitutes ‘IP completion day’ for all references to ‘exit day’ in Schedule 5, paragraphs 1(1)(a), 5(a) and (b) and 2(1). This ensures that the Queen’s Printer will have various duties and powers conferred upon it, to ensure that retained EU law is made accessible, and published, after IP completion day;

c. paragraph 48(3) amends paragraph 3 of Schedule 5:

i. paragraph 48(3)(a) amends paragraph 3(1) of Schedule 5, so that to the extent that determining the meaning or effect of EU law is necessary for any legal proceedings (including for the purpose of interpreting retained EU law and the Agreements), judges will determine the meaning or effect themselves as a question of law, rather than treat it is a question of fact; and

ii. paragraph 48(3)(b) omits the definition of ‘interpreting retained EU law’ from paragraph 3(2) of Schedule 5 to correspond with the change to paragraph 3(1).

d. paragraph 48(4) amends paragraph 4 of Schedule 5:

i. paragraph 48(4)(a) amends sub-paragraph (4) to enable regulations providing for evidential rules to modify legislation which is passed or made before IP completion day;

ii. paragraph 48(4)(b) amends sub-paragraph (5):

1. paragraph 48(4)(b)(i) inserts the Agreements into definition of a ‘relevant matter’ in respect of which regulations can be made under this paragraph; and

2. paragraph 48(4)(b)(ii) makes sure that anything specified in the regulations that relates to the Agreement is also included in the definition of ‘relevant matter’.

560 Paragraph 49 amends Schedule 6 of the EU (Withdrawal) Act 2018 (Instruments which are exempt EU instruments)

a. paragraph (1) introduces the amendments to Schedule 6;

b. paragraph 49 (2) removes paragraphs 1(1), 2 and 4 from inclusion in Schedule 6. These paragraphs set out which EU instruments are ‘exempt’ under the preservation of direct EU legislation in section 3 of the EU (Withdrawal) Act 2018. These exemptions are no longer necessary. These EU instruments will not be preserved under the amended section 3 which will be limited to EU instruments which are applicable to and in the UK at the end of the implementation period; and

c. paragraph 49(3) amends paragraph 3 of Schedule 6, by omitting "or EU regulation" in paragraph 3(b) of Schedule 6 and omitting paragraph 3(b) (which concerns EU directive which is not applicable to the UK immediately before exit day) as these exclusions are no longer needed.

561 Paragraph 50 amends paragraph 2(17) in Part 1 of Schedule 7 of the EU (Withdrawal) Act 2018 to bring into the scope of that paragraph sub-paragraph (16) of paragraph 2 of Schedule 7.

562 Paragraph 51 amends Part 1 of Schedule 7 to insert the scrutiny procedures for powers that will be inserted into the EU (Withdrawal Act) 2018

Powers in connection with Part 4 of the Withdrawal Agreement

563 New paragraph 8A and 8B sets out the parliamentary scrutiny procedures that will apply to the new powers in the EU (Withdrawal) Act 2018 in connection with Part 4 of the Withdrawal Agreement:

a. 8A establishes that instruments made under new section 1A(3)(a)(ii) of the Act is subject to the draft affirmative procedure (i.e approved by a resolution of, each House of Parliament); and

b. 8B provides that where the new section 8A power modifies primary legislation or retained direct principal legislation, it will be subject to the affirmative procedure. Otherwise, the power will be subject to the negative procedure. The equivalent scrutiny procedures in the devolved legislatures are applicable to the devolved authorities acting alone under the powers in Part 1A of Schedule 2 to the EU (Withdrawal) Act 2018;

564 New paragraph 8C deals with scrutiny by the UK Parliament and the devolved legislatures for instruments made jointly by a Minister of the Crown and a devolved authority.

Powers in connection with other separation issues in the Withdrawal Agreement etc.

565 New paragraph 8D sets out the parliamentary scrutiny procedures that will apply to regulations made by UK Ministers under new section 8B:

a. 8D(1) establishes that instruments that amend, repeal or revoke primary legislation or retained direct principal EU legislation may not be made unless a draft has been laid before and approved by both Houses; and

b. 8D(2) sets out that any other instruments made under this power are subject to annulment by either House.

566 New paragraph 8D(3) to (8) sets out the scrutiny procedures that will apply to regulations made by Scottish Ministers, Welsh Ministers or Northern Ireland departments under the power at new Part 1B of Schedule 2; and

567 New paragraph 8E sets out the scrutiny procedures that will apply to regulations made under new Part 1B of Schedule 2 by a UK Minister acting jointly with a devolved authority.

Powers in connection with Ireland/Northern Protocol in the Withdrawal Agreement

568 New paragraph 8F sets out the parliamentary scrutiny procedures that will apply to regulations made under new section 8C and new Part 1C of Schedule 2:

a. 8F(1) provides that the affirmative procedure must be used if an instrument made under section 8C(1) does one or more of the things listed at sub-paragraph 8F(2):

i. amends, repeals or revokes primary legislation or retained direct principal EU legislation;

ii. establishes a public authority;

iii. relates to a fee in respect of a function exercisable by a public authority in the UK;

iv. creates, or widens the scope of, a criminal offence;

v. creates or amends a power to legislate; or

vi. facilitates the access to the market within Great Britain of qualifying Northern Ireland goods.

569 8F(3) sets out that any other instruments made under this power are subject to the negative procedure (i.e subject to resolution of either House of the parliament) ; and

570 8F(4) provides that the affirmative procedure must be used where regulations define ‘qualifying Northern Ireland goods’ under new section 8C(6).

571 New sub-paragraphs 8F(5) to(10) set out the scrutiny procedures that will apply to regulations made by Scottish Ministers, Welsh Ministers or Northern Ireland departments under the power at new Part 1C of Schedule 2.

572 New paragraph 8G sets out the scrutiny procedures by the UK Parliament and the devolved legislatures for instruments made under new Part 1C of Schedule 2 by a Minister of the Crown acting jointly with a devolved authority.

573 Paragraph 52 amends Part 2 of Schedule 7 (scrutiny of other powers under Act) to the European Union (Withdrawal) Act 2018.

574 Paragraph 52(1) introduces the amendment;

575 Paragraph 52(2) inserts a new section 9A (power in relation to interpretation of retained EU law) which provides that regulations made under section 6(5A) are subject to the affirmative procedure. powers under Act).

576 Paragraph 52(3) deletes paragraph 10 of Part 2 of Schedule 7. This is consequential on the repeal of section 9 (the power to implement the withdrawal agreement).

577 Paragraph 52(4) deletes "certain implementation or" in paragraph 17 of Part 2 of Schedule .This is consequential on the repeal of section 9 (the power to implement the withdrawal agreement).

578 Paragraph 52(5) amends t paragraph 17 (1) to remove references to paragraph 10. Paragraph 17(11) is amended to remove the definitions of Commons and Lords sitting days which are no longer necessary after the repeal of section 9.

579 Paragraph 52(6) removes paragraph 18 (Committee of the National Assembly for Wales to sift certain implementation regulations of Welsh Ministers). This is consequential on the repeal of section 9 (the power to implement the withdrawal agreement).

580 Paragraph 52(7) makes further consequential amendments as a result of the repeal of section 9.

581 Paragraph 53 amends Part 3 of Schedule 7 (general provision about powers under Act) in the following way:

a. paragraph 53(1) introduces the amendments to Part 3 of Schedule 7;

b. paragraph 53(2) amends paragraph 21 of Schedule 7 of the EU (Withdrawal) Act 2018 so that powers to make regulations in the Act can be used to modify or restate in a clearer or more accessible way anything which continues on or after exit day, to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at new section 1B(2);

c. paragraph 53(3) amends paragraph 23 of Schedule 7 of the EU (Withdrawal) Act 2018:

i. paragraph 53(3)(a) amends sub-paragraph (1) so that the law preserved by new sections 1A and 1B can also be modified by the power to make consequential provision;

ii. paragraph 53(3)(b) amends sub-paragraph (2) to clarify that the consequential power in the Act can also be used to modify anything which continues, on or after exit day, to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at 1B(2), if the changes are consequential on repeal of any provision in the ECA;

iii. paragraph 53(3)(c) amends sub-paragraph (3) so that the transitional, transitory and savings power in the Act can do things in connection with the repeal of provisions in the ECA or withdrawal from the EU in a way which is additional, or produces different effects, to the changes made by the new sections 1A and 1B of that Act;

iv. paragraph 53(3)(d) amends sub-paragraph (4)(b) to clarify that the consequential power can do things in connection with repeals or withdrawal from the EU which are additional, or produces different effects, to the changes made by new sections 1A and 1B of that Act; and

v. paragraph 53(3)(e) amends sub-paragraph (5) to clarify that the transitional, transitory and savings and consequential powers can be used to treat any provisions provided for in sub-paragraphs (3) and (4) as anything which continues to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at 1B(2);

d. Paragraph 53(4) inserts a new paragraph 23A ‘Anticipatory exercise of powers in relation to section 1B(2) saved law’ into Schedule 7 of the EU (Withdrawal) Act 2018. New paragraph 23A allows for the anticipatory use of delegated powers in this Act in relation to any enactment which continues, on or after exit day, to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at 1B(2). This means that these powers can be exercised before exit day to amend domestic law saved by virtue of 1B(2), so that the regulations come into force on or after exit day;

e. Paragraph 53(5) amends references to ‘exit day’ in paragraph 24 of Schedule 7 of the EU (Withdrawal) Act 2018 to ‘IP completion day’. This means that the delegated powers in the EU (Withdrawal) Act 2018 can be exercised before IP completion day to modify retained EU law, where the regulations come into force on or after IP completion day; and

f. Paragraph 53(6) inserts a new paragraph 24A’Anticipatory exercise of powers in relation to the withdrawal agreement’ into Schedule 7 of the EU (Withdrawal) Act 2018. New paragraph 24A allows for the anticipatory use of delegated powers in the Act which relate to the Withdrawal Agreement. This means regulations can be made before the Withdrawal Agreement is ratified, where the regulations come into force on or after the day on which the Withdrawal Agreement is ratified.

g. Paragraphs 53(7) and 53(8) replace ‘exit day’ with ‘IP completion day’ in paragraphs 28(6)(c) and 29(6)(c) of Part 3 of Schedule 7.

582 Paragraph 54 amends Part 1 of Schedule 8 (general consequential provision):

a. paragraph 54(1) introduces the amendments to Part 1 of Schedule 8;

b. Paragraphs 54(2) and 54(3) substitute references to ‘exit day’ in paragraphs 1(1) and 2(1) of Schedule 8 of the EU (Withdrawal) Act 2018 to ‘IP completion day’. This ensures that existing ambulatory references (that is, cross-references to EU instruments as they may be amended from time to time in the future) will continue to ambulate until IP completion day. After IP completion day, existing ambulatory references to EU Regulations, decisions or tertiary legislation which form part of retained EU law will generally become references to the retained version of those instruments. Other existing ambulatory references will not generally continue to update after IP completion day. Paragraphs 1(1) and 2(1) of Schedule 8 of the EU (Withdrawal) Act 2018 do not apply where any such reference forms part of or is a reference to relevant separation agreement law.

c. Paragraph 54(4) replaces paragraph 7 of Schedule 8 of the EU (Withdrawal) Act 2018. The new paragraph 7 lifts any implied restriction to act compatibly with EU law on exit day and then IP completion day, so far that EU law restriction does not continue to apply under the Withdrawal Agreement. Any implied EU law restriction which continues by virtue of Part 4 of the Withdrawal Agreement will therefore not be lifted until IP completion day. Further, from IP completion day there is no corresponding restriction in relation to retained EU law, so far as it is not relevant separation agreement law. Any restriction that arises by virtue of other Parts of the Withdrawal Agreement will remain after IP completion day;

d. Paragraph 54(5) amends paragraph 8 of Schedule 8 of the EU (Withdrawal) Act 2018 so that existing powers and powers in Acts passed before the end of the implementation period can be exercised to modify retained EU law before IP completion day if they come into force on or after IP completion day;

e. Paragraph 54(6) amends paragraph 9 of Schedule 8 of the EU (Withdrawal) Act 2018 so that it deals with duties to conduct post-implementation reviews of regulations made after IP completion day. In conducting those reviews, Ministers will not need to have regard to how EU Member States have implemented the UK’s former EU obligations;

f. Paragraph 54(7) amends paragraph 12 of Schedule 8 of the EU (Withdrawal) Act 2018 to allow the anticipatory use of future powers so that they can be exercised before IP completion day to amend retained EU law if they come into force on or after IP completion day;

g. Paragraph 54(8), (9), (10) and (11) amend paragraphs 13, 14, 15 and 16 of Schedule 8 of the EU (Withdrawal) Act 2018 so that the additional requirements applying to certain statutory instruments (including Scottish statutory instruments to an extent) that amend or revoke section 2(2) ECA regulations apply from IP completion day. This is in light of the continuing EU obligations on the UK during the implementation period under Part 4 of the Withdrawal Agreement; and

h. these requirements will not apply where the amendment or revocation is only for the purposes of, or otherwise only within the scope of, the Withdrawal Agreement (other than Part 4 of that agreement), the EEA EFTA Separation Agreement, or the Swiss Citizens’ Rights Agreement, as the UK will still be subject to international obligations when making such amendments or revocations.

583 Paragraph 55 amends Part 3 of Schedule 8 on general transitional, transitory or saving provision):

a. Paragraph 55(2) inserts new paragraph 36A into Schedule 8 of the EU (Withdrawal) Act 2018. New sub-paragraphs 36(A)(1) and (2) make clear that anything in force or being done in connection with the ECA as saved by new section 1A(2), EU-derived domestic legislation saved by new section 1B(2), for the purpose of implementing EU obligations or otherwise related to EU law immediately before exit day, continues to be in force or being done on and after exit day;

b. Sub-paragraph 36A(3) makes clear that the above provision in this new paragraph is subject to certain sections of the EU (Withdrawal) Act 2018 and the EU (Withdrawal Agreement) Act, and other relevant enactments. 36A(4) clarifies that references to anything being done, includes anything omitted to be done; and

c. Paragraph 55(3) amends paragraph 37 of Schedule 8 of the EU (Withdrawal) Act 2018 so that it functions as intended, by providing for the continuation of existing acts in relation to retained EU law, but on IP completion day when this law will be retained. It also takes account of other related amendments to this Act.

584 Paragraph 56 amends Part 4 of Schedule 8 on specific transitional, transitory and saving provision:

a. paragraph 56(2) amends the subheading before paragraph 38 of part 4 of Schedule 4 of the EU (Withdrawal) Act 2018 so that it reads: ‘Retention of saved EU law at the end of implementation period’;

b. Paragraph 56(3) inserts a new paragraph 37A to make clear that the automatic repeal of the key implementation period provisions in the EU (Withdrawal) Act 2018 on IP completion day will not prevent the glosses which applied to domestic legislation during the implementation period, under section 1B(3), (4) or (5), from applying to that legislation as saved by Section 2 of the EU (Withdrawal) Act 2018;

c. Paragraph 56(4) amends references to ‘exit day’ to ‘IP completion day’ in paragraph 38 of Schedule 8 in the EU (Withdrawal) Act 2018. This ensures that rights etc which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before IP completion day but are decided on or after IP completion day are preserved by section 4 and are not excluded by subsection (2) of that section;

d. Paragraph 56(5) amends references to ‘exit day’ to ‘IP completion day’ in paragraph 39 of Schedule 8 in the EU (Withdrawal) Act 2018. This makes further provision about the exceptions to the saving and incorporation of EU law set out in section 5 and Schedule 1. This ensures that the transitional and savings provisions for the exceptions to the preservation of EU law take effect from IP completion day;

e. Paragraph 56(6) amends paragraph 40 of Schedule 8 in the EU (Withdrawal) Act 2018 so that new powers which are added to the Act and are sunsetted are added into the name-checked sections to clarify that although these powers expire, the regulations made under them do not expire;

f. Paragraph 56(7) amends references to ‘exit day’ to ‘IP completion day’ in paragraph 41 of Schedule 8 in the EU (Withdrawal) Act 2018 so that the validity of devolved primary legislation receiving Royal Assent before IP completion day or subordinate legislation subject to confirmation or approval that has been made or approved before IP completion day and any other subordinate legislation made before IP completion day is not affected;

g. these amendments also disapply the current EU law limit on devolved competence so that primary and secondary legislation can be made validly before IP completion day in relation to an area that is not specific in any regulations made under the powers inserted by section 12(2), 12(4) or 12(6) or Schedule 3, Part 1 as subject to a limit on competence. This amendment also disapplies - for the exercise of the powers in Schedules 2 and 4 - the provisions in the Devolution Acts that would otherwise prevent the devolved administrations from making secondary legislation that would be incompatible with EU law; and

h. Paragraph 56(8) again amends references to ‘exit day’ to ‘IP completion day’ in paragraph 42 of Schedule 8 in the EU (Withdrawal) Act 2018. This amendment is self-explanatory.

585 Paragraph 57 makes consequential amendments to the European Parliamentary Elections etc (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018 as a result of the conversion of EU law into ‘retained EU law’ taking place at the end of the implementation period.


Legislation (Wales) Act 2019

586 Paragraphs 58 to 62 amend the Legislation (Wales) Act 2019 (anaw 4) to insert, substitute and amend entries relating to the Withdrawal Agreement and, in particular, the implementation period.

 

Prepared 19th December 2019