Immigration and Social Security Co-ordination (EU Withdrawal) Bill (HC Bill 104)

continued    Part 1 continued    

(a)the provision could be contained in subordinate legislation made
otherwise than under this Act by a Northern Ireland devolved
authority acting alone, and

(b)no such consent would be required in that case.

(3)5The consent of a Minister of the Crown is required before any provision is
made by a devolved authority acting alone in regulations under section 5 so
far as that provision, if contained in—

(a)subordinate legislation made otherwise than under this Act by the
devolved authority, or

(b)10subordinate legislation not falling within paragraph (a) and made
otherwise than under this Act by—

(i)in the case of Scotland, the First Minister or Lord Advocate
acting alone, or

(ii)in the case of Northern Ireland, a Northern Ireland devolved
15authority acting alone,

would require the consent of a Minister of the Crown.

(4)Sub-paragraph (3) does not apply if—

(a)the provision could be contained in—

(i)an Act of the Scottish Parliament or, as the case may be, an
20Act of the Northern Ireland Assembly, or

(ii)different subordinate legislation of the kind mentioned in
sub-paragraph (3)(a) or (b) and of a devolved authority
acting alone or, as the case may be, another person acting
alone, and

(b)25no such consent would be required in that case.

Requirement for joint exercise where it would otherwise be required

5(1)No regulations may be made under section 5 by the Scottish Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
30exercisable by—

(a)the Scottish Ministers acting jointly with a Minister of the Crown, or

(b)the First Minister or Lord Advocate acting jointly with a Minister of
the Crown,

unless the regulations are, to that extent, made jointly with the Minister of
35the Crown.

(2)No regulations may be made under section 5 by a Northern Ireland
department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by—

(a)40a Northern Ireland department acting jointly with a Minister of the
Crown, or

(b)another Northern Ireland devolved authority acting jointly with a
Minister of the Crown,

unless the regulations are, to that extent, made jointly with the Minister of
45the Crown.

(3)Sub-paragraph (1) or (2) does not apply if the provision could be contained
in—

(a)an Act of the Scottish Parliament or, as the case may be, an Act of the
Northern Ireland Assembly without the need for the consent of a
Minister of the Crown, or

(b)different subordinate legislation made otherwise than under this Act
5by—

(i)the Scottish Ministers, the First Minister or the Lord
Advocate acting alone, or

(ii)as the case may be, a Northern Ireland devolved authority
acting alone.

10Requirement for consultation where it would otherwise be required

6(1)No regulations may be made under section 5 by the Scottish Ministers acting
alone, so far as they contain provision which relates to a matter in respect of
which a power to make subordinate legislation otherwise than under this
Act is exercisable by the Scottish Ministers, the First Minister or the Lord
15Advocate after consulting with a Minister of the Crown, unless the
regulations are, to that extent, made after consulting with the Minister of the
Crown.

(2)No regulations may be made under section 5 by a Northern Ireland
department acting alone, so far as they contain provision which relates to a
20matter in respect of which a power to make subordinate legislation
otherwise than under this Act is exercisable by a Northern Ireland
department after consulting with a Minister of the Crown, unless the
regulations are, to that extent, made after consulting with the Minister of the
Crown.

(3)25Sub-paragraph (1) or (2) does not apply if—

(a)the provision could be contained in an Act of the Scottish Parliament
or, as the case may be, an Act of the Northern Ireland Assembly, and

(b)there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.

(4)30Sub-paragraph (1) or (2) does not apply if—

(a)the provision could be contained in different subordinate legislation
made otherwise than under this Act by—

(i)the Scottish Ministers, the First Minister or the Lord
Advocate acting alone, or

(ii)35as the case may be, a Northern Ireland devolved authority
acting alone, and

(b)there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.

Interpretation

740In this Part of this Schedule—

• “Northern Ireland devolved authority” means—

  (a)

  the First Minister and deputy First Minister in Northern
  Ireland acting jointly,

  (b)

  a Northern Ireland Minister, or

  (c)

  45a Northern Ireland department;

• “subordinate legislation” means any instrument made under primary
  legislation.

Part 2 Transitional provision

Transitional exception

8Section 57(2) of the Scotland Act 1998 and section 24(1)(b) of the Northern
5Ireland Act 1998 (restriction on acting incompatibly with EU law etc.), so far
as relating to EU law, do not apply to the making of regulations under
section 5.

Section 5(9)

Schedule 3 Regulations under section 5

10Part 1 Statutory instruments

1Any power to make regulations under section 5—

(a)so far as exercisable by the Secretary of State or the Treasury, or by a
Minister of the Crown acting jointly with a devolved authority, is
15exercisable by statutory instrument, and

(b)so far as exercisable by a Northern Ireland department (other than
when acting jointly with a Minister of the Crown), is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979 (SI 1979/1573 (NI 12)) (and not by statutory
20instrument).

2For regulations made under section 5 by the Scottish Ministers, see section
27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)
(“the ILR(S)A 2010”) (Scottish statutory instruments).

Part 2 25Scrutiny of regulations under section 5

Scrutiny where sole exercise

3(1)A statutory instrument containing regulations of the Secretary of State or the
Treasury under section 5 may not be made unless a draft of the instrument
has been laid before, and approved by a resolution of, each House of
30Parliament.

(2)Regulations of the Scottish Ministers under section 5 are subject to the
affirmative procedure (see section 29 of the ILR(S)A 2010).

(3)Regulations of a Northern Ireland department under section 5 may not be
made unless a draft of the regulations has been laid before, and approved by
35a resolution of, the Northern Ireland Assembly.

(4)This paragraph does not apply to regulations to which paragraph 4 applies
(Minister of the Crown and a devolved authority acting jointly).

Scrutiny where joint exercise

4(1)This paragraph applies to regulations under section 5 of a Minister of the
Crown acting jointly with a devolved authority.

(2)The procedure provided for by sub-paragraph (3) applies in relation to
5regulations to which this paragraph applies as well as any other procedure
provided for by this paragraph which is applicable in relation to the
regulations concerned.

(3)A statutory instrument containing regulations to which this paragraph
applies may not be made unless a draft of the instrument has been laid
10before, and approved by a resolution of, each House of Parliament.

(4)Regulations to which this paragraph applies which are made jointly with the
Scottish Ministers are subject to the affirmative procedure.

(5)Section 29 of the ILR(S)A 2010 (affirmative procedure) applies in relation to
regulations to which sub-paragraph (4) applies as it applies in relation to
15devolved subordinate legislation (within the meaning of Part 2 of that Act)
which is subject to the affirmative procedure (but as if references to a
Scottish statutory instrument were references to a statutory instrument).

(6)Section 32 of the ILR(S)A 2010 (laying) applies in relation to the laying before
the Scottish Parliament of a statutory instrument containing regulations to
20which sub-paragraph (4) applies as it applies in relation to the laying before
that Parliament of a Scottish statutory instrument (within the meaning of
Part 2 of that Act).

(7)Regulations to which this paragraph applies which are made jointly with a
Northern Ireland department may not be made unless a draft of the
25regulations has been laid before, and approved by a resolution of, the
Northern Ireland Assembly.

Combination of instruments

5(1)Sub-paragraph (2) applies to a statutory instrument containing regulations
under section 5 which is subject to a procedure before Parliament for the
30approval of the instrument in draft before it is made.

(2)The statutory instrument may also include regulations under another Act
which are made by statutory instrument which is subject to a procedure
before Parliament that provides for the annulment of the instrument after it
has been made.

(3)35Where regulations are included as mentioned in sub-paragraph (2), the
procedure applicable to the statutory instrument—

(a)is the procedure mentioned in sub-paragraph (1), and

(b)is not the procedure mentioned in sub-paragraph (2).

(4)Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
40in relation to a statutory instrument but as if—

(a)the references to Parliament were references to the Northern Ireland
Assembly, and

(b)the reference to another Act in sub-paragraph (2) included Northern
Ireland legislation.

(5)Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under section 5 which is subject to a procedure before
the Scottish Parliament or the Northern Ireland Assembly as well as a
procedure before Parliament as they apply to a statutory instrument
5containing regulations under section 5 which is subject to a procedure before
Parliament but as if the references to Parliament were references to
Parliament and the Scottish Parliament or, as the case may be, the Northern
Ireland Assembly.

(6)This paragraph does not prevent the inclusion of other regulations in a
10statutory instrument or statutory rule which contains regulations under
section 5 (and, accordingly, references in this Schedule to an instrument
containing regulations are to be read as references to an instrument
containing (whether alone or with other provision) regulations).