European Union (Withdrawal) Bill [HL]

Explanatory Notes


36 The current devolution settlements were agreed after the UK became a member of what is now the EU and reflect that context. In areas where powers have been devolved, each of the current settlements specifies that the relevant devolved institution cannot legislate or otherwise act in a way that is incompatible with EU law.

37 The Bill amends each of the devolution statutes (the Scotland Act 1998 , the Northern Ireland Act 1998 , and the Government of Wales Act 2006 ) so as to maintain the current parameters of devolved competence as regards retained EU law. This is intended to be a transitional arrangement while decisions are taken on where common policy approaches are or are not needed. It provides that the devolved legislatures or administrations may only modify retained EU law to the extent that they had the competence to do so immediately before exit. This means that devolved institutions will still be able to act after exit as they could prior to exit in relation to retained EU law. For example, where they currently have discretion over how to implement an EU directive, after exit they will have the ability to modify retained EU law in ways that remain consistent with the underlying directive, rather than being constrained by their existing implementing legislation. By contrast, for example, devolved legislation which would amend or otherwise be incompatible with retained direct EU legislation (such as EU regulations) would, as now, remain outside competence.

38 The Bill provides exceptions to the limit on modifying retained EU law in order to allow the devolved administrations, where appropriate, to use the power to correct problems in domestic legislation within devolved competence.

39 The Bill further provides a power to release areas from the limit on modifying retained EU law where it is agreed that a common approach established by EU law does not need to be maintained and can be changed. This power is exercisable by Order in Council and the Order must be approved by both Houses of Parliament and the relevant devolved legislature (i.e. the Scottish Parliament, the National Assembly for Wales, or the Northern Ireland Assembly). The UK Government is working closely with the devolved administrations to determine where legislative and non-legislative common frameworks will and will not be required. This process is led by the Chancellor of the Duchy of Lancaster and supported by the relevant territorial Secretary of State and began immediately following the Bill’s introduction. The discussions are guided by the principles agreed at the Joint Ministerial Committee (EU negotiations) on 16 October .

40 The procedure for lifting the limit adopts broadly the same approach taken by the powers for devolving responsibilities in the devolution statutes, for example, the power in section 30 of the Scotland Act 1998 to modify the schedules of that Act that define what is and is not within devolved competence. Although the power in this Bill operates in areas that are otherwise devolved, it achieves a similar effect to the powers in those Acts.

41 The approach in the Bill allows for the UK Government to work with the devolved administrations to establish areas where a common approach is or is not required, to help determine where UK frameworks might need to be kept after exit.


Prepared 18th January 2018