European Union (Withdrawal) Bill [HL]

Commentary on provisions of Bill

Clause 1: Repeal of the European Communities Act 1972
 

74 Clause 1 repeals the ECA on exit day. As set out above, this Act is the principal piece of domestic legislation passed by the UK Parliament which gives effect to EU law in the UK and gives EU law supremacy over UK domestic law. The main effects of repealing the Act are to reflect the end of supremacy of EU law in domestic law and to remove the mechanism which enabled the flow of new EU law into UK law.

Clause 2: Saving for EU-derived domestic legislation
 

75 Clause 2 provides that existing domestic legislation which implements EU law obligations (EU-derived domestic legislation, also referred to in these notes as ‘preserved legislation’) remains on the domestic statute book after the UK leaves the EU. Generally, secondary legislation lapses automatically when the primary legislation under which it is made (for instance, section 2(2) ECA) ceases to have effect, unless saved expressly. More widely, there would be doubt as to whether legislation which presupposes membership of the EU would work if the UK is not a member of the EU. The same applies for legislation which relates or refers to the EU. This clause makes it clear that these categories of legislation fall within the category of retained EU law, so that the powers in the Bill can be used to ensure that they still function properly after exit from the EU.

76 Subsection (1) provides that EU-derived domestic legislation will remain in place and continue to have effect on and after exit day, as it has effect before exit day. This will include legislation that has been passed or made but is not yet in force. This will also include amendments to EU-derived domestic legislation made under the ECA. This is in contrast to clause 3 where it is direct EU legislation that is "operative" immediately before exit day that is converted (see paragraph 87 of these notes).

77 Subsection (2) describes the types of legislation which will form part of this ‘EU-derived domestic legislation’, or preserved legislation.

● Subsection (2)(a) preserves secondary legislation made under the dedicated power in section 2(2) of the ECA to implement the UK’s obligations under EU law, including under paragraph 1A of Schedule 2 ECA (this allows for ambulatory cross-references to EU instruments "as amended from time to time", which means the references to the EU instruments will automatically update when that EU instrument is amended). Paragraph 1 of Schedule 8 makes further provision about these ambulatory references.

● Subsection (2)(b) is designed to cover legislation which, while not made under section 2(2) of the ECA, was either specifically passed (e.g. by an Act of Parliament) or made under other secondary legislation making powers for the purpose of implementing EU obligations.1 For example, domestic health and safety law is often made to implement EU obligations but is normally made under the powers in the Health and Safety at Work etc. Act 1974 rather than the ECA. The reference to ‘operates’ is designed to include legislation which was not specifically passed or made to implement our EU obligations (for example, because the EU had not legislated in that area at the time the legislation was made) but has since become part of the way in which we demonstrate compliance with EU requirements.

● Subsection (2)(c) covers enactments which are connected to, but do not fall within, the definitions of domestic legislation preserved by subsection (2)(a) or (2)(b) or converted EU law. It is designed to ensure that provisions which are tied in some way to EU law, or to domestic law which implements EU law, can continue to operate properly post exit. For example, it will ensure that a provision which goes beyond the minimum needed to comply with requirements under EU law (a so-called ‘gold-plated’ provision) is not considered to be excluded from scope of ‘EU derived domestic legislation’. This will allow such a provision to be amended by the powers in the Bill, so that it still works effectively once the UK has left the EU.

● Subsection (2)(d) is a residual category designed to cover provisions which relate in some way to the EU or EEA. For example, if an Act of Parliament contained cross-references to a definition contained in an EU instrument, those provisions would fall within the definition and would be preserved.

● The definition of preserved legislation does not include the ECA itself. Amendments made under the ECA to EU-derived domestic legislation are preserved (see paragraph 76).

78 The category of legislation that is preserved is widely drawn. However, under this clause, domestic legislation is only preserved so far as it is operating for any of the purposes set out at subsections (2)(a) to (d). If it is not operating for those purposes, it will not fall within the ambit of this clause. For example, where an Act of Parliament contains cross-references to an EU instrument this does not mean that the Act as a whole becomes EU-derived domestic legislation (and by extension retained EU law) rather that only those parts of the Act which operate for any of the purposes set out above would. In the same way, only those parts of domestic legislation which implement EU rules (or fall within the other limbs of the definition) will form part of retained EU law (whichever power or powers the instrument was made under). See also subsection (6) of clause 14, which is discussed further at paragraph 147 of these notes.

79 Any domestic legislation which falls within this clause will be preserved subject to the effect of relevant existing case law (see clause 6 for further details).

80 Subsection (3) provides that the preservation of retained EU legislation is subject to the exceptions in clause 5 and Schedule 1 (see below).

Clause 3: Incorporation of direct EU legislation
 

81 EU legislation does not form part of our legal system in the same way as domestic legislation - it is given legal effect in the UK via section 2(1) of the ECA, which describes how such legislation is to have effect "in accordance with the EU Treaties". It is this which ensures that, for example, EU regulations are directly applicable and fully binding in all member states.2

82 This legal order is possible because the UK is a member of the EU and subject to the treaties. Upon exit, the UK will no longer be bound by the treaties and so EU legislation can no longer have effect in accordance with them. The Bill ensures that, where appropriate, EU legislation continues to have effect in our legal system post-exit. Clause 3 addresses this, by converting ‘direct EU legislation’ into domestic legislation at the point of exit.

83 Subsection (1) therefore provides for the conversion into domestic law of this direct EU legislation. Where legislation is converted under this clause, it is the text of the legislation itself which will form part of domestic legislation. This will include the full text of any EU instrument (including its recitals3). Subsection (2) describes the types of legislation which form part of this ‘direct EU legislation’ (see also paragraph 23 of these notes).

84 Subsection (2)(a) converts EU regulations, certain EU decisions and EU tertiary legislation (now known as delegated and implementing acts), as they have effect immediately before exit day. These terms are defined at clause 14. Clause 14 and Schedule 6 provide that certain instruments are exempt EU instruments. These exemptions reflect that certain EU instruments did not apply to the UK because the UK did not adopt the Euro, or because the UK did not participate in certain aspects of the EU acquis, in the area of freedom, security and justice. EU decisions which are addressed only to a member state other than the UK are not converted into domestic law. Additionally, so far as EU-derived domestic legislation under clause 2 reproduces the effect of an EU regulation, decision or tertiary legislation, these instruments are not converted under this clause. This is to avoid duplication on the statute book after exit.

85 Subsection (2)(b) and 2(c) ensure the conversion into domestic law of any relevant EU regulations, decisions and tertiary legislation as they apply to the EEA. As set out in the legal background of these notes, the European Economic Area Act 1993 makes the EEA Agreement one of the ‘EU treaties’ for the purposes of the ECA. Because of this, section 2(1) and (2) of the ECA applies to provisions of the EEA Agreement. In essence, direct EU legislation applies to the EEA by virtue of its inclusion in the Annexes to the EEA Agreement, with any adaptations that are necessary for it to apply in the EEA context. This direct legislation, as adapted, then flows into UK domestic legislation as a result of section 2(1) of the ECA. Protocol 1 to the EEA Agreement contains horizontal adaptations which set out general interpretative provisions that apply throughout the Annexes to the Agreement. For instance, whenever EU acts refer to nationals of an EU member state, the references shall, for the purposes of the EEA Agreement, also be understood as references to nationals of EFTA states.

86 Subsection (2)(b) therefore converts any Annex to the EEA Agreement to the extent that it relates to those EU instruments which are converted by subsection (2)(a). The effect of this is to bring into domestic law EU regulations, decisions and tertiary legislation as they apply, and are adapted for, the EEA context. As with the EU version of instruments, where domestic enactments saved under clause 2 reproduce the effect of an EU instrument (as adapted for the EEA) those adapted instruments are not converted under this clause. Again, this is to avoid duplication on the statute book after exit. Subsection 2(c) converts Protocol 1 to the EEA agreement as it was immediately before exit.

87 Under this clause, direct EU legislation is only converted and incorporated into domestic law "so far as operative immediately before exit day". Subsection (3) clarifies what this means. As discussed in paragraph 52 of these notes, some EU legislation applies in a staggered way over time, and the Bill ensures that, so far as a relevant instrument has entered into force and applies before exit day, it will be converted into domestic legislation. Where there is a stated date of application, and this date falls after exit day, the provision is not converted. This means that, provided it is not expressly stated to apply from a date falling after exit day, EU legislation which is in force before exit day will be converted even if it has some effect which crystallises after exit day. For example the EU fluorinated greenhouse gases regulation [No. 517/2014] , the whole of which is stated to apply from 1 January 2015, prohibits the supply of equipment containing certain substances from specified dates, several of which fall after exit day. These future prohibitions apply now, even though they do not take effect until after exit day. They are therefore converted under the Bill and will take effect on the specified dates.

88 In the case of EU decisions, if the date of notification to the addressee (for example the UK or a person in the UK) falls before exit day then that decision is converted.

89 Subsection (4) clarifies that clause 3 will only convert the English language version of existing direct EU legislation into domestic legislation. However, other language versions can continue to be considered as aids to interpretation by the courts.

90 Subsection (5) provides that the saving of direct EU legislation is subject to the exceptions in clause 5 and Schedule 1.

Clause 4: Saving for rights etc. under section 2(1) of the ECA
 

91 Clause 4 ensures that any remaining EU rights and obligations which do not fall within clauses 2 and 3 continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties.

92 Directly effective rights are those provisions of EU treaties which are sufficiently clear, precise and unconditional to confer rights directly on individuals which can be relied on in national law without the need for implementing measures. Where directly effective rights are converted under this clause, it is the right which is converted, not the text of the article itself.

93 For example, the Government considers that the following TFEU articles contain directly effective rights which would be converted into domestic law as a result of this clause (this is an illustrative list and is not intended to be exhaustive).

94 In addition, directly effective rights may also arise under other treaties which are brought into domestic law by virtue of the ECA, including the EEA Agreement and Euratom. These include international agreements made by the EU with third countries, as well as certain multilateral agreements to which either or both of the EU and UK are a party. For example, the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children contains a number of directly effective provisions in relation to cross-border children cases, such as jurisdiction rules and rules for cross-border recognition and enforcement of judgments affecting children.

95 Any directly effective rights converted into domestic law as a result of this clause would be subject to amendment or repeal via statutory instrument made under clause 7. For example, where the resulting provision has no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions.

96 Subsection (2) sets out exceptions to the conversion under subsection (1). First, it provides that the clause does not bring in any rights, powers etc. if they already form part of domestic law by virtue of clause 3. Secondly, the clause excludes directly effective rights arising under an EU directive (including as extended to the EEA by the EEA agreement). In particular, the CJEU has held that in certain circumstances, when a member state has not properly implemented a directive, that directive can confer rights on individuals that the national courts must protect. Where directly effective provisions of directives have been recognised by a court or tribunal before exit day, these will be converted into domestic law. However, any directly effective provisions of directives that have not been recognised prior to exit day (to the extent these might exist) will not be converted by this clause (subject to the transitional etc. provision in Schedule 8, paragraph 26).

97 Subsection (3) clarifies that this clause is also subject to the exceptions in clause 5 and Schedule 1.

Clause 5: Exceptions to savings and incorporation
 

98 Clause 5 sets out two exceptions to the saving and incorporation (referred to as preservation and conversion in these notes) of EU law provided for under clauses 2, 3 and 4.

99 The first exception is the principle of supremacy of EU law (see paragraph 56 of these notes). The principle of supremacy means that domestic law must give way if it is inconsistent with EU law. In the UK this can mean that a court must disapply an Act of Parliament, or a rule of the common law, or strike down UK secondary legislation even if the domestic law was made after the relevant EU law.

100 The effect of subsections (1) and (2) is that this principle will not apply to legislation which is passed or made on or after exit day (an Act is passed when it receives Royal Assent). So, for example, if an Act of Parliament is passed on or after exit day which is inconsistent with EU law which is preserved or converted by the Bill (for example, a retained EU regulation), that new Act of Parliament will take precedence. Where, however, a conflict arises between pre-exit domestic legislation and retained EU law, subsection (2) provides that the principle of the supremacy of EU law will, where relevant, continue to apply as it did before exit. So, for example, a retained EU regulation would take precedence over pre-exit domestic legislation that is inconsistent with it. The principle would not, however, be relevant to provisions made by or under this Bill or to other legislation which is made in preparation for the UK's exit from the EU.

101 The principle of supremacy also means that domestic law must be interpreted, as far as possible, in accordance with EU law. So, for example, domestic law must be interpreted, as far as possible, in light of the wording and purpose of relevant directives. Whilst this duty will not apply to domestic legislation passed or made on or after exit day, subsection (2) preserves this duty in relation to domestic legislation passed or made before exit.

102 Finally, subsection (3) sets out that the principle of supremacy can continue to apply to pre-exit law which is amended on or after exit day where that accords with the intention of the modifications.

103 The second exception is the Charter of Fundamental Rights. The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill. References to the Charter in the domestic and CJEU case law which is being retained, are to be read as if they referred to the corresponding fundamental rights.

104 Given that the Charter did not create any new rights, subsection (5) makes clear that, whilst the Charter will not form part of domestic law after exit, this does not remove any underlying fundamental rights or principles which exist, and EU law which is converted will continue to be interpreted in light of those underlying rights and principles.

105 Subsection (6) provides that further limited exceptions to the preservation and conversion of EU law have effect, as set out in Schedule 1.

Clause 6: Interpretation of retained EU law
 

106 Clause 6 sets out how retained EU law is to be read and interpreted on and after exit day.

107 Subsections (1) and (2) set out the relationship between the CJEU and domestic courts and tribunals after exit. These subsections provide that:

● decisions of the CJEU made after exit day will not be binding on domestic (UK) courts and tribunals;

● domestic courts cannot refer cases to the CJEU on or after exit day; and

● domestic courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.

108 When interpreting retained EU law domestic courts will, however, be able to consider post-exit EU actions including CJEU case law if they consider it appropriate.

109 Subsection (3) provides that any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre-exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the ‘travaux preparatoires’ (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law). The general principles (such as proportionality, fundamental rights and non-retroactivity) are applied by the CJEU and domestic courts when determining the lawfulness of legislative and administrative measures within the scope of EU law, and are also an aid to interpretation of EU law. Where retained EU law has not been amended on or after exit day then it will be interpreted in accordance with pre-exit CJEU case law and the retained general principles of EU law (insofar as relevant). Non-binding instruments, such as recommendations and opinions, would still be available to a court to assist with interpretation of retained EU law after exit.

110 UK courts will also be required to interpret retained EU law by reference to (among other things) the limits of EU competence, as it exists on the day the UK leaves the EU. Article 5(2) TEU confirms that the Union could only act within the limits of the competences conferred upon it by the member states. Competences not conferred upon the Union remain with the member states. For example, article 4(2) TEU provides that, amongst other matters, the maintenance of law and order and safeguarding national security matters have not been conferred on the EU and remain with member states. 4

111 Subsections (4) and (5) set out that, unlike other courts, the UK Supreme Court (UKSC) and the High Court of Justiciary (HCJ) are not bound by either retained general principles or retained CJEU case law. The HCJ is the highest criminal court in Scotland from which there is no right of further appeal to the UKSC, except in respect of certain matters set out in subsection (4)(b)(i). After exit day, retained CJEU case law will have the same binding, or precedent, status in domestic courts and tribunals as existing decisions of the UKSC or HCJ. This means that the UKSC (and, except where there is a further appeal to the UKSC, the HCJ) will be able to choose to depart from previous CJEU case law. In doing so, the UKSC and the HCJ are required to apply the same tests as they would when considering whether to depart from their own previous decisions. The test the UKSC uses is set out in an existing practice statement which sets out that it may depart from previous decisions ‘where it appears right to do so’. The HCJ will apply its own tests in deciding whether or not to depart from inherited CJEU case law.

112 Subsection (6) sets out that retained EU law which has been amended on or after exit day can be determined in accordance with CJEU case law and the general principles where that accords with the intention of the amendments.

113 Subsection (7) provides definitions of the terminology relevant to this clause.

Clause 7: Dealing with deficiencies arising from withdrawal
 

114 Clause 7(1) gives ministers of the Crown a power to make secondary legislation to deal with problems that would arise on exit in retained EU law. This includes the law which is preserved and converted by clauses 2 to 5 (i.e. both domestic law and directly applicable EU law). These problems, or deficiencies, must arise from the UK’s withdrawal from the EU (which includes the consequence that the UK will cease to participate in the EEA Agreement). The law is not deficient merely because a minister considers that EU law was flawed prior to exit. A minister is able to take action before exit in order to prevent the deficiency from arising. For the purposes of clause 7(1), a failure of retained EU law is a type of deficiency: a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.

115 Subsection (2) explains the sorts of deficiencies that the power can deal with. These include:

● provisions that have no practical application after the UK has left the EU;

● provisions on functions that are currently being carried out in the EU on the UK’s behalf, for example by an EU agency;

● provisions on reciprocal arrangements or rights between the UK and other EU member states that are no longer in place or are no longer appropriate;

● any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate;

● EU references that are no longer appropriate.

116 Subsection (2) also provides that if a function or restriction is contained in a directive and therefore not retained, and has not been transposed into domestic law, this can be a deficiency. For example, if the UK has implemented a directive but has not implemented the provisions in the directive which provide for the Commission or EU agency to carry out a function, the absence of this function in retained EU law could be a deficiency in the implementing legislation after the UK leaves the EU. The correcting power could be used to recreate the function.

117 Subsection (3) also provides that deficiencies not on the list but which are "of a similar kind" to those on the list in subsection (2) are within the scope of the correcting power. For example, clause 7(2)(c)(ii) refers to the public authorities of EU member states; deficiencies related to public authorities of EEA-EFTA states will be of a similar kind to those related to public authorities of EU member states, so they benefit from the sweeper provision in subsection (3).

118 There are more detailed examples of possible deficiencies and corrections in the Government White Paper Legislating for the United Kingdom’s Withdrawal from the European Union (pages 20 - 21) and a further example in the policy background section of these notes.

119 Subsection (3) also contains a delegated power for ministers of the Crown to provide for additional sorts of deficiencies. This power will be exercisable by statutory instrument subject to the affirmative procedure (see Schedule 7, paragraph 1(5)).

120 Subsection (4) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient.

121 Subsection (5) provides that secondary legislation made under the power in this clause can do anything an Act of Parliament might to deal with deficiencies. This could include altering Acts of Parliament where appropriate and sub-delegating the power to a public authority where they are best placed to deal with the deficiencies. However, the power is subject to the restrictions set out in subsection (7). For example, the power cannot be used to impose or increase taxation, to make retrospective provision, or for the purposes of implementing the withdrawal agreement (separate provision is made for implementation of the withdrawal agreement in clause 9).

122 Subsection (6) provides, non-exhaustively, for what the secondary legislation made under this power can do. For example, it can transfer the functions of EU authorities to UK public authorities or create new UK public authorities to take on those functions. These functions might include the ability to set rules or create standards, which are currently made by the EU as non-legislative acts (delegated and implementing acts). The power can be used to repeal, amend or replace parts of the retained law. There will be other uses of the power necessary to correct deficiencies. The power could be used to amend law which is not retained EU law where that is an appropriate way of dealing with a deficiency in retained EU law.

123 Subsection (8) makes clear that the temporary power in this clause can only be used for up to two years after exit day, as it expires at that point. Paragraph 28 of Schedule 8 provides that it is the power and not the regulations which expires.

124 Subsection (9) provides that the meaning of deficiency can cover a deficiency that arises out of withdrawal taken together with the operation of, or interaction between, provisions of the Bill or provisions made under the Bill.

125 The parliamentary scrutiny procedures for the exercise of the power in subsection (1) are set out in Part 1 of Schedule 7.

Clause 8: Complying with international obligations
 

126 Clause 8 gives ministers of the Crown the power to make secondary legislation to enable continued compliance with the UK’s international obligations by preventing or remedying any breaches that might otherwise arise as a result of withdrawal.

127 Subsection (2) provides that secondary legislation made under the power in this clause can do anything an Act of Parliament might for the purpose set out in subsection (1), but this is subject to restrictions set out in subsection (3).

128 Subsection (4) makes clear that the temporary power in this clause can only be used for up to two years after exit day, as it expires at that point. Paragraph 28 of Schedule 8 provides that it is the power and not the regulations that expires.

129 The scrutiny procedures for this power are set out in Part 2 of Schedule 7.

Clause 9: Implementing the withdrawal agreement
 

130 Clause 9 gives ministers of the Crown a power to make secondary legislation to implement a withdrawal agreement concluded between the UK and the EU under Article 50(2) of the TEU (or that Article as applied by the Euratom Treaty).

131 Subsection (1) provides ministers with the power to make legislative changes which they consider appropriate for the purposes of implementing the withdrawal agreement. Regulations made using this power are restricted to implementing only those measures that should be in place for exit day and this power is not intended to be used for post-exit modifications. The use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.

132 Subsection (2) provides that secondary legislation made under the power in this clause is capable of doing anything an Act of Parliament can do, including modifying the Bill itself, subject to the restrictions specified in subsection (3). As set out in paragraph 15 of Schedule 7, regulations made under powers in the Bill can modify retained EU law and the definition of "modify" in clause 14 provides that it includes amending, repealing or revoking legislation.

133 Subsection (3) places a series of restrictions on the power stating what it cannot do. The power cannot be used to impose or increase taxation, make retrospective provision, create a relevant criminal offence or amend or repeal the Human Rights Act 1998.

134 The power expires on exit day meaning that no regulations can be made after this time. Paragraph 28 of Schedule 8 provides that it is the power and not the regulations made under it which expires.

135 The scrutiny procedures for this power are set out in Part 2 of Schedule 7.

Clause 10: Corresponding powers involving devolved authorities
 

136 This clause provides that devolved authorities can exercise the power to deal with deficiencies arising from withdrawal, the power to comply with international obligations and the power to implement the withdrawal agreement as defined in Schedule 2.

Clause 11: Retaining EU restrictions in devolution legislation etc.
 

137 The Scotland Act 1998 currently requires the Scottish Parliament to legislate in a way that is compatible with EU law. Subsection (1) amends the Scotland Act 1998 to define the competence of the Scottish Parliament by reference to retained EU law. The amendments will replace the former requirement with a provision which means that it is outside the competence of the Scottish Parliament to modify retained EU law in a way which would not have been compatible with EU law immediately before exit. This legislative competence test is subject to any exceptions which may be prescribed by Order in Council.

138 Subsections (2) and (3) make equivalent provision in respect of the Government of Wales Act 2006 and Northern Ireland Act 1998 and apply the same legislative competence test to the National Assembly for Wales and the Northern Ireland Assembly. As above, exceptions can be prescribed by Order in Council.

139 Subsection (4) provides for Part 1 of Schedule 3 to have effect, which establishes the test for executive competence. Subsection (5) provides for Part 2 of Schedule 3 to have effect, which makes other amendments to the devolution legislation, for example correcting deficient terms.

Clause 12: Financial provision
 

140 Subsection (1) gives effect to Schedule 4 which provides powers in connection with fees and charges.

141 Subsection (2) provides that ministers of the Crown, government departments and devolved authorities may incur expenditure in preparation for the making of statutory instruments under this Bill (or under existing powers to make subordinate legislation as modified by or under the Bill) from Royal Assent.

142 Subsections (3) and (4) deal with the further financial provision necessary as a result of the Bill.

Clause 13: Publication and rules of evidence
 

143 Clause 13 gives effect to Schedule 5 on the publication of, and rules of evidence for, retained EU law and other relevant documents and instruments.

Clause 14: Interpretation
 

144 Subsection (1) defines certain terms used throughout the Bill, including defining exit day as 11.00 p.m. on 29 March 2019. This is in line with the calculation of time in EU law, as well as the EU’s negotiating directives, which indicate that the UK will leave the EU at 00.00 on 30 March Brussels time, corresponding to 11.00 p.m. on 29 March UK time.

145 Subsection (2) makes further provision about the meaning of references to exit day. References in the Bill to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at 11.00 p.m. on 29 March 2019 or (as the case may be) to beginning with 11.00 p.m. on that day.

146 Subsections (3) and (4) provide that if the date and time at which the EU Treaties cease to apply to the UK is not the date and time specified in subsection (1), a minister may make regulations to amend the definition of exit day in this Bill to ensure that they are aligned. A change in the date is possible under Article 50(3) of the TEU. Regulations made under subsection (4) would be subject to the affirmative procedure (see Schedule 7, paragraph 10).

147 Subsection (6) provides that references in the Bill to things which continue to be domestic law, include things which would have continued to exist regardless of the saving in clause 2. This makes clear that it is not necessary to consider whether an enactment might have been subject to implied repeal as a result of repeal of the ECA, in order to bring it within the ambit of clause 2 and therefore the definition of "retained EU law".

148 Subsection (8) provides that any reference in the Bill to the former Article 34(2)(c) of the TEU (which concerned decisions in the field of police and judicial cooperation in criminal matters) is a reference to that Article as it applied before the Lisbon Treaty. It is necessary to include these references in the Bill to ensure that it accurately reflects the legal basis for these measures.

149 Subsection (9) provides that references in the Bill to certain provisions of the TEU and TFEU include references to those provisions as they apply to the Euratom Treaty.

Clause 15: Index of defined expressions
 

150 Clause 15 lists various expressions used throughout the Bill 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 Bill); the Interpretation Act 1978 contains other definitions which are also relevant to the Bill.

Clause 16: Regulations
 

151 Clause 16 gives effect to Schedule 7 on how the powers to make regulations in the Bill are exercisable.

Clause 17: Consequential and transitional provision
 

152 Subsection (1) allows a minister of the Crown to make regulations which are appropriate as a consequence of the Bill.

153 Subsection (2) clarifies that consequential provision might include modifying (such as amending, repealing or revoking) other primary or secondary legislation.

154 Subsection (3) provides that ministers cannot make consequential provision which amends Acts (or secondary legislation made under those Acts) passed after the end of the parliamentary session in which this Bill is passed.

155 Subsection (4) gives effect to Parts 1 and 2 of Schedule 8, containing further consequential provisions.

156 Subsection (5) allows a minister of the Crown to make transitional, transitory or saving provision by regulations. For example, this power could be used to save section 2(3) of the ECA (which authorises payments to the European Union) in respect of liabilities incurred whilst the UK was a member state. This could include outstanding transfers of customs duties and sugar levy payments collected by the UK on behalf of the EU.

157 Subsection (6) gives effect to Parts 3 and 4 of Schedule 8, which contains transitional, transitory and saving provisions.

158 Subsection (7) gives effect to Schedule 9, which sets out repeals of certain enactments under the Bill.

Clause 18: Extent
 

159 This clause provides that the Bill extends to the legal jurisdictions of England and Wales, Scotland and Northern Ireland, except that any repeal or amendment of an enactment has the same extent as the enactment being amended or repealed.

160 The Bill repeals some Acts that extend beyond the UK. The ECA has limited application to Gibraltar and the Crown Dependencies so its repeal in clause 1 will also extend to them. The European Union Act 2011, the European Parliamentary Elections Act 2002 and the European Parliament (Representation) Act 2003 also extend to Gibraltar. These Acts will be repealed in respect of Gibraltar as well as the UK, and the powers in clauses 7 and 17 will be capable of making provision for Gibraltar in relation to European Parliamentary Elections and connected matters.

Clause 19: Commencement and short title
 

161 Subsection (1) sets out the provisions of the Bill that will commence on Royal Assent.

162 Subsection (2) sets out that the remaining provisions will come into force on the day or days appointed by regulations, and different days may be appointed for different purposes.

163 Subsection (3) establishes that the short title of the Bill is the European Union (Withdrawal) Act 2018.

Schedule 1: Further provision about exceptions to savings and incorporation
 

164 This Schedule sets out some further exceptions to the preservation and conversion of EU law provided for under clauses 2, 3 and 4. This Schedule should be read together with Part 4 of Schedule 8, which makes specific transitional, transitory and saving provision.

Challenges to validity of retained EU law

165 Paragraph 1 provides that, post-exit, no challenge can be brought in the UK courts to retained EU law on the basis that immediately before exit day, an EU instrument (for example, an EU regulation or decision) was invalid. This restriction is, however, subject to the exceptions at sub-paragraphs (2) and (3). First, any decisions of the CJEU which pre-date exit day about the validity of the instrument will not be affected. Secondly, a minister of the Crown has the power to describe in regulations types of challenge to validity which will be capable of being brought on or after exit day. Sub-paragraph (3) provides that any such regulations may enable challenges which, prior to exit, would have proceeded against an EU institution to proceed against a UK public authority following exit.

General principles of EU law

166 Paragraph 2 provides that only the EU general principles which have been recognised in CJEU cases decided before exit, will form part of domestic law after exit. These include, for example, some fundamental rights, non-retroactivity, and proportionality. More detail on the general principles is set out at paragraph 53 of these notes.

167 Paragraph 3 provides that there is no right of action in domestic law post-exit based on failure to comply with the EU general principles. Courts cannot disapply domestic laws post-exit on the basis that they are incompatible with the EU general principles. Further, domestic courts will not be able to rule that a particular act was unlawful or quash any action taken on the basis that it was not compatible with the general principles. Courts will, however, be required under clause 6 to interpret retained EU law in accordance with the retained general principles. Paragraph 3 is subject to the transitional provisions set out under paragraph 27 of Schedule 8. Sub-paragraph (5) of that paragraph sets out that the restriction on challenges based on incompatibility with any of the general principles of EU law (set out in paragraph 3 of Schedule 1) does not apply in respect of certain proceedings begun up to three months after exit day. In order to fall within the scope of this sub-paragraph, any challenge must relate to something that occurred before exit day and may be made against either administrative action or domestic legislation other than Acts of Parliament or the common law. It cannot be used in relation to: anything which gives effect to or enforces an Act of Parliament or the common law; or anything which could not have been different as a result of any Act of Parliament or rule of law. Courts, tribunals and other public authorities will be able to disapply legislation or quash conduct in the event of a successful challenge.

Rule in Francovich

168 In Francovich5 the CJEU established that in some circumstances states have to compensate individuals for damage that they suffer as a result of the State’s breach of EU law. EU law confers a right to reparation where 
the rule of law infringed is intended to confer rights on individuals, the breach is ‘sufficiently serious’, which means that the member state has manifestly and gravely disregarded the limits of its discretion and where there is a direct causal link between the breach and the damage.

169 Paragraph 4 provides that the right to claim damages against the state for breaches of EU law (Francovich damages) will not be available after exit. This provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law (for example, under the Public Contracts Regulations 2015 ) or the case law which applies to the interpretation of any such provisions.

Interpretation

170 Paragraph 5 clarifies that references in clause 5 and this Schedule to the principle of supremacy of EU law, the Charter of Fundamental Rights, any general principle of EU law or the rule in Francovich are to be read as references to that principle, Charter or rule as they stand at exit day, not as they will operate in EU law in the future.

Schedule 2: Corresponding powers involving devolved authorities
 

Part 1: Dealing with deficiencies arising from withdrawal

171 Part 1 describes the circumstances in which devolved authorities (defined in clause 14 as Scottish ministers, Welsh ministers and Northern Ireland departments) can use the power to deal with deficiencies arising from withdrawal.

Power to deal with deficiencies

172 Paragraph 1 provides that the power to deal with deficiencies arising from withdrawal can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. The same restrictions on the use of the power which apply to UK ministers also apply to devolved authorities. It also provides that the devolved authorities cannot use the power to sub-delegate law making powers. Changes made using the power conferred on ministers of the Crown in clause 7(3) will also apply to the devolved authorities’ power in this Part.

No power to make provision outside devolved competence

173 Paragraph 2 provides that the power to deal with deficiencies arising from withdrawal cannot be used outside of the devolved competence of the devolved authorities as set out in paragraphs 9 to 12 of this Schedule 2.

No power to modify retained direct EU legislation etc.

174 Sub-paragraph (1) of paragraph 3 provides that the devolved authorities can only use the power to deal with deficiencies to amend EU-derived domestic legislation. Sub-paragraph (2) prohibits the devolved authorities from using the power in ways that would create inconsistencies with any corrections to retained direct EU law which the UK Government has made. For example, where the UK Government is correcting an EU regulation and a devolved authority is correcting the domestic legislation which creates the enforcement provisions for that EU regulation, the domestic legislation will need to be corrected in a way that makes sense with the corrected EU regulation.

175 Sub-paragraph (3) provides that the restrictions on using the power to modify retained direct EU legislation or anything which is retained EU law by virtue of clause 4, and on making changes that are inconsistent with modifications to those categories of law made by this Act or UK ministers exercising powers conferred by this Act, do not apply to the Scottish Ministers in areas that have been exempted from the competence limit in clause 11 by Order in Council. Sub-paragraphs (4) and (5) make equivalent provision for the Welsh Ministers and Northern Ireland departments respectively.

No power to confer certain functions relating to EU tertiary legislation

176 Paragraph 4 provides that devolved authorities cannot use this power to confer the function to make what is currently known in the EU as tertiary legislation or non-legislative acts (delegated and implementing acts).

Requirement to consult in certain circumstances

177 Paragraph 5 sets out the requirement for the devolved authorities to consult the UK Government prior to using the power in certain circumstances. These circumstances are where either the legislation is being commenced prior to exit day, or where the legislation relates to the unwinding of reciprocal arrangements.

Requirement for consent where it would otherwise be required

178 Paragraph 6 sets out that if a devolved authority is making a provision using the power to deal with deficiencies arising from withdrawal 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

179 Paragraph 7 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 to deal with deficiencies.

Requirement for consultation where it would otherwise be required

180 Paragraph 8 requires consultation with the UK Government on legislation made by a devolved authority in the exercise of the power to deal with deficiencies, where the devolved authority would normally be required to consult with the UK Government when making those kind of changes in legislation.

Meaning of devolved competence: Part 1

181 Paragraphs 9 to 12 clarify the extent of devolved competence in relation to the exercise of the power to deal with deficiencies arising from withdrawal.

182 Paragraph 9 relates to the competence of the Scottish ministers. Sub-paragraph (1) relates to legislative competence, and sets out that a Scottish minister may exercise the power to deal with deficiencies where the Scottish Parliament has legislative competence. The definition of ‘legislative competence’ for the purposes of exercising this power 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 Scottish ministers to make all necessary regulations under this power to correct deficiencies in devolved areas. This is because correcting deficiencies in retained EU law will inevitably require some changes that would be incompatible with EU law and therefore would be outside the normal legislative competence of the Scottish Parliament.

183 Sub-paragraph (2) relates to those secondary legislation making powers which are not within legislative competence but are within executive competence of a Scottish minister (these would include, for example, secondary legislation making functions transferred to Scottish ministers under section 63 of the Scotland Act 1998). This sets out that Scottish ministers may act to correct secondary legislation which has been made under their executive competence, even where those corrections would not be within the legislative competence as described in sub-paragraph (1). This is subject to certain restrictions described in sub-paragraph (2) around application, extent and subject matter of those corrections.

184 Paragraph 10 relates to the competence of Welsh ministers and makes the same provision for Welsh ministers as for Scottish ministers as set out in paragraph 9. Welsh ministers will be able to exercise the power to deal with deficiencies in areas within the Welsh Assembly’s legislative competence (disapplying the normal restrictions preventing the Welsh Assembly from legislating in a way that is incompatible with EU law) and to correct deficiencies in legislation which has been made under their executive competence.

185 Paragraph 11 relates to the competence of Northern Ireland departments. Sub-paragraph (1)(a) deals with transferred matters, providing that Northern Ireland devolved authorities may make regulations using the power to deal with deficiencies 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 (1)(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 deal with deficiencies to amend this legislation.

186 In both sub-paragraphs (1)(a) and (1)(b) the existing restriction on legislative competence that would make it outside of legislative competence to act in a way that is incompatible with EU law is disapplied for the purposes of defining legislative competence for the purpose of this power. Sub-paragraph (2) makes the same provision as for Scottish and Welsh ministers so that Northern Ireland departments can exercise the power to deal with deficiencies to correct legislation which has been made under their executive competence.

Part 2: Complying with international obligations

187 Part 2 describes the circumstances in which devolved authorities can use the power to comply with international obligations.

Power to comply with international obligations

188 Paragraph 13 provides that the power to comply with international obligations can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. It sets out that the same restrictions on the use of the power that apply to UK ministers also apply to devolved ministers, along with an additional restriction preventing the power from being used to sub-delegate law-making powers.

No power to make provision outside devolved competence

189 Paragraph 14 provides that the international obligations power cannot be used outside of the devolved competence of the devolved authorities as set out in paragraphs 18 to 20 of this Schedule 2.

No power to modify retained direct EU legislation etc.

190 Paragraph 15 provides that the devolved authorities cannot use the power to amend retained direct EU legislation or in a way which is inconsistent with amendments made by ministers of the Crown to retained direct EU legislation.

191 Sub-paragraph (3) provides that the restrictions on using the power to modify retained direct EU legislation or anything which is retained EU law by virtue of clause 4, and on making changes that are inconsistent with modifications to those categories of law made by this Act or UK ministers exercising powers conferred by this Act, do not apply to the Scottish Ministers in areas that have been exempted from the competence limit in clause 11 by Order in Council. Sub-paragraphs (4) and (5) make equivalent provision for the Welsh Ministers and Northern Ireland departments respectively.

Requirement for consent in certain circumstances

192 Paragraph 16 sets out circumstances in which the devolved authorities would need to seek the consent of the UK Government before legislating. This is where proposed regulations would come into force before exit day, relate to World Trade Organisation obligations, or relate to the modification or allocation of quota.

Certain requirement for consent, joint exercise or consultation

193 Paragraph 17 applies the rules set out in paragraphs 6 to 8 (requirement for consent, joint exercise and consultation) to the use of the international obligations power so that where a devolved authority would normally only be able to make legislation with UK Government consent, after consulting with the UK Government or jointly with the UK Government, the devolved authority will still have to obtain consent, consult or make such legislation jointly (as applicable) when exercising the international obligation power to make such a provision.

Meaning of devolved competence: Part 2

194 Paragraphs 18 to 20 define devolved competence for the purposes of exercising the power.

195 Paragraph 18 provides that something is within the devolved competence of Scottish ministers for the purposes of this power if it is either within the legislative competence of the Scottish Parliament (if the EU law restriction on legislative competence was disapplied) or is otherwise an area in which Scottish ministers could have made the relevant provision by secondary legislation (if there was not a general restriction on making secondary legislation that contravened EU law). The disapplication of the EU law restrictions for the purposes of defining the Scottish ministers’ ability to use this power is necessary to enable Scottish ministers to make all necessary changes under this power in devolved areas. This is because any changes needed under this power are likely to involve a change that would be incompatible with EU law prior to exit.

196 Paragraph 19 makes the same provision for the devolved competence of Welsh ministers as for Scottish ministers. Welsh ministers have competence if something is within the legislative competence of the Welsh Assembly or is otherwise an area in which Welsh ministers could make the relevant provision by secondary legislation (disapplying the normal restrictions that would otherwise prevent the Welsh Assembly or Welsh ministers from legislating incompatibly with EU law).

197 Paragraph 20 makes provision for the competence of a Northern Ireland department. Sub-paragraph (a) deals with transferred matters, providing that Northern Ireland departments may make regulations in any areas which would be within the Assembly’s legislative competence and that would not require the consent of the Secretary of State. Sub-paragraph (b) deals with reserved matters, providing that where the Northern Ireland legislation has previously been made in relation to reserved matters that legislation can be amended using the international obligations power. Sub-paragraph (c) provides that Northern Ireland departments can also use the power in areas where they would otherwise have been able to make secondary legislation. As with Scotland and Wales, the normal restrictions on making legislation which contravenes EU law are disapplied for the purposes of defining devolved competence to use this power.

Part 3: Implementing the withdrawal agreement

198 Part 3 describes the circumstances in which devolved authorities can use the power to implement the withdrawal agreement.

Power to implement withdrawal agreement

199 Paragraph 21 provides that the power to implement the withdrawal agreement can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. It sets out that the same restrictions on the use of the power that apply to UK ministers also apply to devolved ministers, along with additional restrictions preventing the power from being used to sub-delegate any law-making powers, from modifying secondary legislation made under the Bill (except where that legislation was made by the devolved authority or the power is being exercised jointly with a minister of the Crown), or from modifying the Bill.

No power to make provision outside devolved competence

200 Paragraph 22 provides that the power to implement the withdrawal agreement cannot be used outside of the devolved competence of the devolved authorities, as defined in paragraphs 18 to 20.

No power to modify retained direct EU legislation etc.

201 Sub-paragraph (1) of paragraph 23 provides that the devolved authorities cannot use the power to implement the withdrawal agreement by amending direct EU legislation. Sub-paragraph (2) provides that devolved authorities cannot use the power to make any provision that is inconsistent with amendments made by ministers of the Crown to retained direct EU legislation.

202 Sub-paragraph (3) provides that the restrictions on using the power to modify retained direct EU legislation or anything which is retained EU law by virtue of clause 4, and on making changes that are inconsistent with modifications to those categories of law made by this Act or UK ministers exercising powers conferred by this Act, do not apply to the Scottish Ministers in areas that have been exempted from the competence limit in clause 11 by Order in Council. Sub-paragraphs (4) and (5) make equivalent provision for the Welsh Ministers and Northern Ireland departments respectively.

No power to confer certain functions relating to EU tertiary legislation

203 Paragraph 24 provides that this power for devolved authorities to implement the withdrawal agreement cannot be used to confer functions that correspond to powers to make EU tertiary legislation (also known as non-legislative acts or delegated and implementing acts).

Requirement for consent in certain circumstances

204 Paragraph 25 sets out that if the proposed regulations relate to the allocation of a quota, devolved authorities would need to seek the consent of the UK Government before legislating.

Certain requirements for consent, joint exercise or consultation

205 Paragraph 26 applies the rules set out in paragraphs 6 to 8 of Schedule 2 to the use of the withdrawal agreement power so that, where a devolved authority would normally only be able to make a particular provision in legislation with the UK Government’s consent, after consulting with the UK Government or jointly with the UK Government, the devolved authority will still have to obtain consent, consult or make such legislation jointly (as applicable) when exercising the withdrawal agreement power to make such a provision.

Schedule 3: Further amendments of devolution legislation
 

Part 1: Corresponding provision in relation to executive competence

206 Part 1 establishes the test for executive competence, which accompanies the legislative competence test provided for in clause 11.

Scotland Act 1998

207 Paragraph 1 makes provision in relation to the existing limit in section 57(2) Scotland Act 1998 on a member of the Scottish Government making secondary legislation or otherwise acting incompatibly with EU law. Paragraph 1 amends this limit so that it applies to the power of a member of the Scottish Government to make, confirm or approve any secondary legislation modifying retained EU law. Paragraph 1(b) provides that a member of the Scottish Government may not make such a modification unless it would be within the legislative competence of the Scottish Parliament. This limit on executive competence is subject to the exception that a member of the Scottish Government may exercise the powers to make regulations under Schedule 2 or 4. This new executive competence test is also subject to any exceptions which may be prescribed by Order in Council.

Government of Wales Act 2006, Northern Ireland Act 1998

208 Paragraphs 2 and 3 make equivalent provision in respect of the Government of Wales Act 2006 and the Northern Ireland Act 1998 to give effect to the new test for executive competence.

Part 2: Other amendments of devolution legislation

209 Part 2 (paragraphs 4 to 51) contains a series of amendments to the devolution legislation resulting from the UK leaving the EU. Specifically, it amends the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006.

210 The amendments deal with a variety of issues and how these need to be reflected in the devolution legislation, including the repeal of the ECA by clause 1, the preservation and conversion of existing EU law into UK domestic law on and after exit day by clause 2 and the approach to legislative and executive competence taken by clause 11. For example, the specific mechanism under section 106(7) Scotland Act 1998 for enforcement of certain EU obligations has been removed on the basis that EU obligations forming part of retained EU law will continue to bind devolved ministers as a matter of domestic law. Provision is also made in respect of the cessation of European Parliamentary elections in the UK, the protection of this Bill from modification (but not secondary legislation made under the Bill), and to deal with other deficiencies arising in the devolution legislation which will result from the UK leaving the EU.

211 Not all changes to the devolution legislation have been included in the Bill on introduction. For example, changes to the list of reserved matters in Part 2 of Schedule 5 to the Scotland Act 1998 and in Schedule 7A to the Government of Wales Act 2006 are not included. Similarly, paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 is not amended by the Bill (this is the only remaining correction to that Act not addressed on the face of the Bill). This is because the UK Government intends to discuss these changes with the devolved administrations before finalising the amendments.

Schedule 4: Powers in connection with fees and charges
 

Part 1: Charging in connection with certain new functions

212 Part 1 of Schedule 4 gives ministers of the Crown and devolved authorities a power to make secondary legislation to enable public authorities to charge fees and other charges, such as levies.

Power to provide for fees or charges

213 Paragraph 1 provides that where a public authority has a new function under the powers in clauses 7, 8 or 9 or the equivalent powers in Schedule 2, an appropriate authority may make regulations enabling the public authority to charge fees or other charges, such as levies, in connection with carrying out that function. Sub-paragraph (3) mentions some of the things that this power may do. In particular it may set the amounts of fees or charges or say how they are to be determined, for example by a formula. It may also provide for how the money is collected and spent. Sub-paragraph (3)(c) provides that regulations made under this power can sub-delegate this power to the public authority that has the function. Any regulations that sub-delegate the power will be subject to the affirmative scrutiny procedure (see paragraph 8(1) of Schedule 7).

Meaning of "appropriate authority"

214 Paragraph 2 sets out the meaning of ‘appropriate authority’ for the use of this power. This includes ministers of the Crown. It also includes devolved authorities in circumstances where the function has been conferred by them, the function has been conferred on them, or the provision to confer the function would have been within the competence of the relevant devolved legislature (ignoring the requirements not to act incompatibly with EU law or modify retained EU law).

Requirements for consent

215 Paragraph 3 provides that a minister of the Crown can only set fees or charges under this power with the consent of the Treasury. A devolved authority can only set fees or charges for functions of a minister of the Crown or a body with cross-border functions with the consent of a minister of the Crown.

Minister of the Crown power in relation to devolved authorities

216 Paragraph 4 gives a minister of the Crown the power to establish additional circumstances where a devolved authority can use the power and to disapply consent requirements for a devolved authority to use the power where it is appropriate to do so.

Relationship to other powers

217 Paragraph 5 clarifies that this power does not affect any other power in the Bill or elsewhere that might make provision for fees or other charges.

Part 2: Modifying pre-exit fees or charges

Power to modify pre-exit fees or charges

218 Paragraph 6 gives a power to modify secondary legislation about fees or other charges which was created pre-exit using powers in the ECA or section 56 of the Finance Act 1973. Pre-exit, section 56 of the Finance Act 1973 provided a specific power for fees or other charges, such as levies, connected to EU obligations.

219 Sub-paragraph (2) explains what may be done with the power, for example altering the amount of the fees or charges.

Meaning of "appropriate authority"

220 Paragraph 7 explains who may use the power; the devolved authorities will be able to use this power insofar as they could have used the ECA power or the Finance Act 1973 power prior to exit day.

Restriction on exercise of power and requirement for consent

221 This power is modelled on these two pre-exit powers. So where it is used to modify legislation created through the ECA, it cannot impose or increase taxation, in line with the constraint at paragraph 1(1)(a) of Schedule 2 to the ECA. And a minister of the Crown needs Treasury consent to make certain kinds of provision, in line with section 56 of the Finance Act.

Relationship to other powers

222 Paragraph 10 clarifies that this power does not affect the other power in the Bill or elsewhere that might make provision for fees or charges.

Schedule 5: Publication and rules of evidence
 

Part 1: Publication of retained direct EU legislation etc.

Copies that must or may be published

223 To ensure that retained EU law is accessible after exit day, the Bill makes express provision on the publication of, amongst other things, retained direct EU legislation. This will be done by the Queen’s Printer (within The National Archives).

224 Sub-paragraph (1) of paragraph 1 provides that the Queen’s Printer is required to make arrangements to ensure each ‘relevant instrument’ which has been published before exit day, and ‘relevant international agreements’, are published in the UK.

225 Sub-paragraph (2) defines which instruments and international agreements are classified as ‘relevant’. This covers the EU instruments which could (subject to the application of the Bill) have effect in our law after exit day as retained direct EU legislation, and four of the main EU treaties.

226 Sub-paragraph (3) allows, but does not require, the Queen’s Printer to publish any decision of or expression of opinion by the European Court, and any other document published by an EU entity.

227 Sub-paragraph (4) provides that the Queen’s Printer may publish anything else that the Queen’s Printer considers useful in relation to the other documents published under this clause, for example ‘as amended’ versions of retained direct EU legislation which reflect changes made using the deficiencies powers in the Bill, or guidance documents.

228 Sub-paragraph (5) provides that the Queen’s Printer is not required to publish anything which has been repealed before exit day, or to publish any modifications made on or after exit day.

Exceptions from duty to publish

229 Paragraph 2 provides that the Queen’s Printer does not have to publish instruments (including categories or specific parts of instruments) in respect of which they have received a direction from a minister of the Crown stating that, in the opinion of that minister, the instrument has not become (or will not become on exit day) retained direct EU legislation. Any direction must be published.

Part 2: Rules of evidence

Questions as to meaning of EU instruments

230 Generally, the meaning or effect of the law in other jurisdictions is treated as a question of fact, to be proved in legal proceedings by evidence, rather than determined by a judge as a question of law. Section 3 of the ECA clarified that, when the UK joined the EU, UK judges were to determine the meaning or effect of the EU Treaties, or the validity, meaning or effect of any EU instrument, as a question of law, in accordance with the principles laid down by and relevant decisions of the CJEU. The EU law which is being retained by the Bill will become domestic law, and so fall to be interpreted by judges in this country. Some EU law will not become retained EU law, but may still be relevant to the interpretation of the retained EU law (for example, a court may have to consider the meaning of an EU directive when interpreting domestic regulations made to implement that directive). Paragraph 3 therefore provides that, to the extent that determining the meaning or effect of EU law is necessary for a court to interpret retained EU law, judges will continue to determine that meaning or effect themselves as a question of law, rather than treat it as a question of fact.

Power to make provision about judicial notice and admissibility

231 Matters which are ‘judicially noticed’ are deemed to already be within the knowledge of the court, and so are not required to be ‘proved’ to the court. For example, public Acts of Parliament and the EU Treaties are judicially noticed.6 Paragraph 4 provides that a minister of the Crown can make regulations which provide for judicial notice to be taken of a relevant matter, and for the admissibility in legal proceedings of evidence of both a relevant matter and instruments and documents issued by or in the custody of an EU entity, to ensure that appropriate evidential rules can be put in place to reflect the new legal landscape after exit.

232 Sub-paragraph (2) of paragraph 4 provides that regulations made under sub-paragraph (1) may require that certain conditions must be fulfilled (such as conditions regarding certification) before any evidential rules are satisfied.

233 Sub-paragraphs (3) and (4) enable regulations providing for evidential rules to modify legislation which is passed or made before the end of the Session in which this Bill is passed. This is to ensure that any new rules can properly sit alongside existing evidential provisions in other enactments.

234 Sub-paragraph (5) defines what the ‘relevant matters’ are in respect of which regulations can be made under this paragraph, being retained EU law, EU law, the EEA Agreement, or anything specified in the regulations which relates to those matters.

235 Under paragraph 9 of Schedule 7, a statutory instrument containing regulations made under this power will be subject to the affirmative procedure.

Schedule 6: Instruments which are exempt EU instruments
 

236 Schedule 6 sets out which EU instruments are to be regarded as ‘exempt’ and therefore excluded under clause 3 from the saving and incorporation of direct EU legislation prior to exit day.

EU decisions

237 Paragraph 1 provides that "exempt EU instruments" includes a number of categories of EU decision which do not apply to the UK. These include:

● Existing EU decisions which do not apply to the UK under relevant Protocols; and

● Decisions relating to common foreign and security policy under Title V of the pre-Lisbon TEU and under the current Title V of the TEU (post-Lisbon).

EU regulations

238 Paragraph 2 provides that "exempt EU instruments" includes those EU regulations which do not apply under relevant Protocols, as detailed in paragraph 4.

EU tertiary legislation

239 Paragraph 3 provides that "exempt EU instruments" includes EU tertiary legislation which has been made under an exempt EU decision, regulation or a directive which does not apply to the UK under relevant Protocols, as detailed in paragraph 4.

Interpretation

240 Paragraph 4 defines the "relevant Protocols" with reference to a list.

Schedule 7: Regulations
 

Part 1: Scrutiny of power to deal with deficiencies

241 Paragraphs 1, 2 and 4 set out the three parliamentary scrutiny procedures by which regulations can be made under the power to deal with deficiencies arising from withdrawal in clause 7(1) and the circumstances in which each will apply. The main procedures are the draft affirmative, the negative (subject to a sifting procedure, except in urgent cases) and, for urgent cases, the made affirmative.

242 Draft affirmative resolution procedure (paragraph 1(1) of Schedule 7): These instruments cannot be made unless a draft has been laid before and approved by both Houses.

243 Negative resolution procedure (paragraph 1(3) of Schedule 7): These instruments become law when they are made (they may come into force on a later date) and remain law unless there is an objection from either House. The instrument is laid after making, subject to annulment if a motion to annul (known as a ‘prayer’) is passed within forty days.

244 Instruments to be made under the negative resolution procedure must (unless the Minister makes a declaration of urgency (see paragraph 4(8) of Schedule 7)) first be laid in draft before a committee of the House of Commons for sifting (see paragraph 3 of Schedule 7).

245 Made affirmative resolution procedure (paragraph 4 of Schedule 7): These instruments can be made and come into force before they are debated, but cannot remain in force unless approved by both Houses within one month. This procedure can only be used by ministers of the Crown. The Government believes that the exceptional circumstances of withdrawing from the EU might necessitate the use of the made affirmative procedure so the Bill allows for this as a contingency.

Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone

246 Paragraph 1 provides that the draft affirmative must be used if an instrument made under clause 7(1) does one or more of the things listed at sub-paragraph (2):

● establishes a new public authority

● transfers an EU function to a newly created public authority

● transfers an EU legislative function (i.e. a power to make delegated or implementing acts) to a UK body

● relates to fees

● creates or widens the scope of a criminal offence (although the power cannot be used to create certain criminal offences)

● creates or amends a power to legislate (this does not include repealing or revoking)

247 Sub-paragraph (3) provides that the negative procedure can be used in other cases, though (as sub-paragraph (4) flags) that is subject to the "sifting" procedure at paragraph 3.

248 Sub-paragraph (5) provides that the affirmative procedure must be used if an instrument is made under clause 7(3).

249 Sub-paragraphs (6) to (11) provide for equivalent affirmative and negative procedures in each of the devolved legislatures.

Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly

250 Paragraph 2 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.

Parliamentary committee to sift certain regulations involving Minister of the Crown

251 Paragraph 3 requires, before instruments under clause 7(1) being proposed for the negative procedure may be made, that the minister lays a draft of the instrument before a Committee of the House of Commons, along with a memorandum explaining the choice of procedure. This committee has 10 sitting days to make a recommendation as to the appropriate procedure for the instrument. After receiving the recommendation, or after 10 sitting days without a recommendation, a Minister may either proceed with making a negative instrument, or proceed with an affirmative instrument instead. The minister may proceed with the instrument at a later date.

Scrutiny procedure in certain urgent cases

252 Paragraph 4 allows the made affirmative procedure to be used for regulations made by a minister of the Crown in urgent cases.

253 Paragraph 4(8) enables Ministers to make negative regulations without going through the procedure at paragraph 3 in urgent cases. Urgent cases could include, for example, where a statutory instrument needs to come into force because of a lead-in time required to allow systems to be changed or put in place before exit or, where, due to the progress of negotiations, statutory instruments are made close to exit day.

Part 2: Scrutiny of other powers under Act

Power to enable challenges to validity of retained EU law

254 Paragraph 5 provides that the draft affirmative (or made affirmative, see paragraph 14 of Schedule 7) procedure must be used for an instrument under paragraph 1(2)(b) of Schedule 1 (power to enable challenges to validity of retained EU law).

Power to implement international obligations

255 Paragraph 6 sets out the parliamentary scrutiny procedures for the power to comply with international obligations in clause 8, which mirror, as appropriate, the scrutiny procedures for the power to deal with deficiencies in paragraphs 1 to 3.

Power to implement withdrawal agreement

256 Paragraph 7 sets out the scrutiny procedures that apply to secondary legislation made under the power to implement the withdrawal agreement in clause 9 which mirror, as appropriate, the scrutiny procedures for the power to deal with deficiencies, with an additional rule that the draft affirmative (or made affirmative, see paragraph 14 of Schedule 7) must be used where this power is used to amend this Act.

Powers in connection with fees and charges

257 Paragraph 8 sets out the scrutiny procedures that apply to secondary legislation made under the powers in connection with fees and charges in Schedule 4.

258 The draft affirmative procedure (or the made affirmative, see paragraph 14 of Schedule 7) must be used for regulations made under paragraph 1 of Schedule 4 which sub-delegate the power or which impose a fee or charge, except for re-exercising the power to make modifications, for example for changing the amount of the fee or charge, which can be done under the negative procedure. The negative procedure can be used for regulations made under paragraph 4 or 7 of Schedule 4.

Power to make provision about publication and rules of evidence

259 Paragraph 9 provides that regulations under the power in Schedule 5 to make provision about publication and rules of evidence are subject to the affirmative procedure.

Power to amend the definition of "exit day"

260 Paragraph 10 provides that the affirmative procedure must be used for regulations made under clause 14(4) to change the definition of "exit day".

Power to make consequential provision

261 Paragraph 11 provides that regulations under the power to make consequential provision at clause 17(1) are subject to the negative procedure.

Power to make transitional, transitory or saving provision

262 Paragraph 12 provides that the draft affirmative or negative procedure can be used for regulations made under subsection (5) of clause 17.

Parliamentary committee to sift certain regulation involving Minister of the Crown

263 Paragraph 13 requires, before instruments under clauses 8 and 9 that are proposed for the negative procedure can be made, that the minister lays a draft of the instrument before the a Committee of the House of Commons, along with a memorandum explaining the choice of procedure. This committee has 10 sitting days to make a recommendation as to the appropriate procedure for the instrument. After receiving the recommendation, or after 10 sitting days without a recommendation, a minister may either proceed with making a negative instrument, or proceed with an affirmative instrument instead.

Scrutiny procedure in certain urgent cases

264 Paragraph 14(1) to (6) allows the made affirmative procedure to be used for regulations made by a minister of the Crown under the power to enable challenges to validity of retained EU law, power to comply with international obligations, power to implement the withdrawal agreement or power to provide for fees or charges, in urgent cases.

265 Paragraph 14(7) and (8) enables Ministers to make negative regulations under clauses 8 and 9 without going through the procedure at paragraph 13 in urgent cases. Urgent cases could include, for example, where a statutory instrument needs to come into force because of a lead-in time required to allow systems to be changed or put in place before exit or, where, due to the progress of negotiations, statutory instruments are made close to exit day.

Part 3: General provision about powers under Act

Scope and nature of powers: general

266 Paragraph 15 sets out how the powers to make regulations in the Bill are exercisable by statutory instrument (where exercised by a minister of the Crown, by a Welsh minister or by a minister of the Crown acting jointly with a devolved authority) and by statutory rule (where the powers are exercised by a Northern Ireland department). As provided for by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010, regulations made by Scottish ministers acting alone will be made by Scottish statutory instrument.

267 Paragraph 16 applies to all powers in the Bill. It provides that that all the powers in the Bill can be used to modify retained EU law and can make provisions in different ways for different cases or descriptions of case, in different circumstances, areas or for different purposes and that they include the power to make supplementary etc provision and to restate retained EU law.

268 Paragraph 17 provides that powers in the Bill may overlap without that overlap impacting on the scope of each of the powers.

Scope of consequential and transitional powers

269 Sub-paragraph (1) of paragraph 18 provides that the law preserved and converted by clauses 2 to 6 may be modified by the power to make consequential provision.

270 Sub-paragraph (2) therefore clarifies that the consequential power in the Bill can, for example, be used to modify retained EU law if the changes are consequential on repeal of the ECA.

271 Sub-paragraph (3) clarifies that the power to make transitional, transitory and savings provisions can be used to do things in connection with the repeal of the ECA and generally in connection with withdrawal of the UK from the EU. The power can be used for these purposes in a way which is additional to the changes made by the clauses in the Bill that deal with the preservation, conversion and interpretation of EU law, or to produce different effects for particular cases.

272 Sub-paragraph (4) clarifies that the consequential power can do things in connection with repeals made by the Bill, or which are additional to the provisions covered in the clauses of the Bill that deal with the preservation, conversion and interpretation of EU law, including in a way that might alter their effect for particular cases. Provisions of this kind can be treated as retained EU law, as sub-paragraph (5) provides.

Scope of appointed day powers

273 Paragraph 19 provides that a minister of the Crown can specify the time of day when specifying a day under any of the powers in the Bill.

Effect of certain provisions in Schedule 8 on scope of powers

274 Paragraph 20 provides that the powers in the Bill may be used to make different provision, in particular cases, from the changes made by Part 1 of Schedule 8 and amendments to the Interpretation Act 1978 made by paragraphs 7 to 11. For example, although the Bill amends the definition of ‘enactment’ in the Interpretation Act so as to include retained direct EU legislation, the powers in the Bill could, where appropriate, be used to amend references to ‘enactment’ in other legislation so as to exclude some or all retained direct EU legislation from the definition.

Disapplication of certain review provisions

275 Paragraph 21 disapplies the requirement in the Small Business, Enterprise and Employment Act 2015 to conduct and publish a post-implementation review for any secondary legislation made under any of the powers in the Act. Post-implementation reviews assess the impact of new legislation on business.

Explanatory statements for certain powers: appropriateness, equalities

276 Paragraph 22 sets out that certain explanatory statements must accompany statutory instruments made by ministers of the Crown under the delegated powers in clauses 7(1), 8 or 9. These will require a minister to make statements:

● indicating whether the draft legislation amends/repeals/revokes equalities legislation (the Equality Act 2010, the Equality Act 2006 or any secondary legislation made under either of those Acts) – and if so, what the effect is;

● indicating that the minister has had due regard under equalities legislation to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010, so far as required by equalities legislation;

● explaining the instrument or draft and the reasons for it;

● explaining what any relevant law did before exit day and how the retained EU law is being changed; and,

● that the minister considers that the instrument does no more than is appropriate.

277 Sub-paragraph (1) specifies that these statements must be made before an instrument or a draft of it is laid before each House of Parliament or before the House of Commons only. This means laid before the House of Commons for consideration by the sifting committee (for those proposed for the negative procedure), laid in draft (for those following the draft affirmative procedure), or laid after making (for those following the made affirmative procedure, or the negative procedure in urgent cases).

278 Sub-paragraph (6) sets out the consequence where a minister has failed to make the necessary statements. In such a scenario a minister must make a statement to Parliament explaining why the relevant minister failed to comply with the obligation in this paragraph.

279 Sub-paragraph (7) requires these statements to be made in writing and published in an appropriate manner. The Government expects that these statements should normally be published in the Explanatory Memoranda accompanying statutory instruments.

280 Sub-paragraph (8) provides that an instrument or draft to be laid before both Houses is to be considered as laid when it is first laid before either House. This might occur on different days where, for example one House is sitting and the other is not.

281 Sub-paragraph (9) avoids repeating the requirement to make statements where an equivalent draft or instrument has already been laid before both Houses. This avoids duplicate statements when, for example, an instrument has been laid for sifting and an equivalent instrument is then laid again after making (to follow the negative procedure) or in draft (to follow the affirmative procedure).

Hybrid instruments

282 Paragraph 23 sets out that regulations brought forward under the powers in this Bill are never to be treated as hybrid instruments.7

Procedure on re-exercise of certain powers

283 Paragraph 24 provides that where an instrument modifies certain earlier regulations made under the Bill, the rules for choosing the scrutiny procedure apply afresh.

Combinations of instruments

284 Regulations under the powers in this Bill can be combined with regulations under most other powers in other Acts; "levelling up" the whole instrument to the more onerous scrutiny procedure where relevant. Paragraph 25 allows affirmative regulations under this Bill to be combined with negative regulations under other powers. Other provisions (see for example paragraph 1(3) of Schedule 7) would enable other combinations.

Schedule 8: Consequential, transitional, transitory and saving provision
 

Part 1: General consequential provision

Existing ambulatory references to retained direct EU legislation

285 Paragraphs 1 and 2 of Schedule 8 set out what happens with existing ambulatory references after exit. As described above, these are cross-references to EU instruments as they may be amended from time to time in the future. Paragraph 1A of Schedule 2 to the ECA provided a power to make such references, and some have also been made in primary legislation and using other powers.

286 The effect of paragraph 1(1) is that existing ambulatory references to EU regulations, decisions, tertiary legislation or provisions of the EEA agreement which are to be incorporated into domestic law under clause 3 will, on exit day, become references to the retained versions of those instruments as they are modified from time to time by domestic law (unless the contrary intention appears). This approach ensures that modifications of EU law made by the EU on or after exit day do not form part of UK domestic law. As set out in paragraph 1(2), however, this does not affect ambulatory references contained in powers in other domestic legislation (i.e. other than the power contained in the ECA) which will be preserved under clause 2 of the Bill and are subject to a procedure before Parliament or in the devolved legislatures. Paragraph 1(3) provides that paragraph 1(1) is also subject to other provision made by or under this Act, including the powers in clauses 7 to 9.

Other existing ambulatory references

287 Paragraph 2 provides that any other existing ambulatory references (which are not dealt with by paragraph 1) to any of the EU treaties, other EU instruments (such as directives) or any other document of an EU entity do not continue to update after exit day. So, for example, where there is a reference in domestic legislation to an ‘EU Directive as amended from time to time’, this paragraph ensures that the reference to the directive should be read as a reference to the version that had effect immediately before exit day. Any updates to that directive which occur after exit day would not be brought into domestic law. Regulations made under clause 7 will be capable of correcting any deficiencies which arise as a result. As set out in paragraph 2(2), however, paragraph 2(1) does not affect ambulatory references contained in powers in other domestic legislation (i.e. other than the power contained in the ECA) which will be preserved under clause 2 of the Bill and which are subject to a procedure before Parliament or in the devolved legislatures. Paragraph 2(3) provides that paragraph 2(1) is also subject to other provision made by or under this Act, including the powers in clauses 7 to 9.

Existing powers to make subordinate legislation

288 Sub-paragraph (1) of paragraph 3 provides that any existing powers to make subordinate legislation in pre-exit legislation are capable of amending retained direct EU legislation such as converted EU regulations (and sub-paragraph (2) provides that it is treated as secondary legislation for the purposes of scrutiny procedures under those pre-exit powers).

289 Sub-paragraph (3) provides that pre-exit powers do not have any implied EU law restriction (meaning they can be used to legislate in a way that would not have been compatible with EU law pre-exit, as long as the power would be capable of being used in that way on a plain reading).

290 The provisions of paragraph 3 apply to the pre-existing secondary legislation making powers of the devolved administrations as well as to the secondary legislation making powers of ministers of the Crown. However in relation to the devolved administrations these pre-existing powers are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence.

Review provisions in existing subordinate legislation

291 Paragraph 4 deals with duties to conduct post-implementation reviews of regulations made before exit, such as under section 28 of the Small Business, Enterprise and Employment Act 2015. In conducting those reviews, ministers will not now need to have regard to how EU member states have implemented former EU obligations.

Future powers to make subordinate legislation

292 Paragraph 5 provides that powers to make secondary legislation in Acts passed after the UK’s withdrawal from the EU are capable of amending retained direct EU legislation, unless otherwise provided.

Part 2: Specific consequential provision

Finance Act 1973

293 Paragraph 6 amends section 56 of the Finance Act 1973 (charges for services by Government departments) to remove the reference to "EU obligations", which is no longer relevant.

Interpretation Act 1978

294 Paragraphs 7 to 11 make amendments to the Interpretation Act 1978, which is the legislation which sets out some general rules of interpretation of legislation, including in relation to the construction of certain words and phrases, the effect of repeals and the interpretation of statutory powers and duties.

295 Paragraph 8 provides that the definition of subordinate legislation contained in the Interpretation Act 1978 includes instruments of the same nature made on or after exit day under any retained direct EU legislation. This means that the provisions of the Interpretation Act will apply to instruments which are made under retained direct EU legislation, (for example under powers in a retained EU regulation which have been turned into domestic powers), as they apply to other subordinate legislation. It also means that where other legislation relies on the Interpretation Act definition of subordinate legislation, it will include subordinate legislation made under retained direct EU legislation.

296 Paragraph 9 amends the Interpretation Act 1978 to provide that certain provisions within it will apply (so far as applicable and unless contrary intention is made) to any amendments which are made to converted direct EU legislation. So, for example, where amendments are made to EU regulations which include terms that are defined in Schedule 1 to the Interpretation Act, the Interpretation Act definition will apply to them, unless a contrary intention is shown (though if the same terms were used in an unamended part of the instrument, the Interpretation Act definition would not apply to those instances).

297 Paragraph 10 amends the provisions of the Interpretation Act 1978 as it applies to Northern Ireland so that the old ECA definitions saved by paragraph 11 (below) continue to apply to Northern Ireland legislation.

298 Paragraph 11 adds a number of words and expressions to Schedule 1 to the Interpretation Act 1978. The ECA contains a number of important definitions in section 1 and Part 2 of Schedule 1. These definitions apply to all legislation made by Parliament and by the Northern Ireland Assembly and Welsh Assembly (and not just to the ECA), by virtue of section 5 of, and Schedule 1 to, the Interpretation Act. The latter provides that "the EU" or "the EU Treaties" and other expressions defined by section 1 of, or Schedule 1 to, the ECA have the meanings prescribed by that Act. Paragraph 11 moves most of these old ECA definitions across to the Interpretation Act, as otherwise they would no longer exist as a result of repeal of the ECA. However, the definition of "EU customs duty", "EU obligation" and "enforceable EU right" have not been retained in the Interpretation Act as such references will be broken on exit and will need to be amended or repealed using powers under the Bill. There are also some changes to some definitions, and some new definitions, to reflect the new context post exit and the relationship between domestic and retained EU law. For example, paragraph 11 inserts into Schedule 1 to the Interpretation Act new definitions of "exit day", "retained EU law", and "retained direct EU legislation" and "retained EU obligation", to ensure those concepts recognised under the Bill apply to all legislation.

European Economic Area Act 1993

299 Paragraphs 12 to 17 amend the European Economic Area Act 1993. As explained in the legal background of these notes, on exit day the UK ceases to participate in the EEA Agreement. Paragraph 13 therefore repeals section 1 of the EEA Act 1993, which was the basic provision implementing the EEA Agreement in UK law and is therefore redundant. Paragraphs 14 and 15 amend sections 2 and 3 of the EEA Act 1993. These sections ensure that domestic legislation which 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 by clauses 2 and 3 will continue to operate appropriately in respect of legislation that pre-dates the EEA Agreement. Paragraphs 16 and 17 make consequential amendments to the EEA Act 1993.

Criminal Procedure (Scotland) Act 1995

300 Paragraph 18 amends section 288ZA Criminal Procedure (Scotland) Act 1995 so that it refers to the new limit on modifying retained EU law rather than compatibility with EU law.

Human Rights Act 1998

301 Paragraph 19 provides that retained direct EU legislation (see the definition in clause 14(1)) is to be treated as ‘primary legislation’ for the purposes of the Human Rights Act 1998. This means that any retained direct EU legislation is to be treated as primary legislation for the purposes of challenges under the Human Rights Act 1998, meaning that if the legislation is found to breach the Act, a court may issue a declaration of incompatibility but may not strike down the legislation.

Interpretation and Legislative Reform (Scotland) Act 2010

302 Paragraph 21 amends the definition of ‘Scottish instruments’ in Part 1 of the Interpretation and Legislative Reform Act (Scotland) 2010 (ILRA). This means that where an instrument is made by Scottish ministers under a combination of powers in an Act of the Scottish Parliament and powers in retained direct EU legislation the provisions in Part 1 of ILRA (which deal with various rules of interpretation) will apply to that instrument.

303 Paragraph 22 amends the definition of ‘enactment’ for Part 2 of that Act to include retained direct EU legislation and defines subordinate legislation for the purposes of Part 2 of that Act as including secondary legislation made under retained direct EU legislation. The effect of these changes is to make the normal rules on Scottish statutory instrument procedure contained in ILRA (which deal with scrutiny in the Scottish Parliament) apply to Scottish statutory instruments made by Scottish Ministers under new powers in retained direct EU legislation.

304 Paragraph 23 adds a number of words and expressions to Schedule 1 of that Act to bring over definitions from the ECA which would otherwise no longer exist as a result of repeal of the ECA.

Small Business, Enterprise and Employment Act 2015

305 Paragraph 24 amends section 30(3) of the Small Business, Enterprise and Employment Act 2015 to omit the requirement for a review to have regard to how an EU obligation is implemented in other Member States. In legislation that implements the UK’s international obligations the requirement to review how other countries have implemented an obligation remains.

Part 3: General transitional, transitory or saving provision

Continuation of existing acts etc.

306 Paragraph 25 provides that anything done or in force before exit day (or in in the process of being done), and which relates to any element of retained EU law is preserved. For example, licences lawfully issued before exit day would continue to have effect after exit day.

Part 4: Specific transitional, transitory and saving provision

Retention of existing EU law

307 Paragraph 26 provides that rights etc which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before exit but are decided on or after exit day are preserved by clause 4 and are not excluded by subsection (2) of that clause.

308 Paragraph 27 makes further provision about the exceptions to the saving and incorporation of EU law set out in clause 5 and Schedule 1. The exceptions apply in relation to anything occurring before exit day as well as anything occurring after exit day. However, this is subject to the following specific transitional and saving provision and any specific saving and transitional provision made in regulations under clause 17(5). First, the exceptions for the Charter of Fundamental Rights, and for claims in respect of validity, general principles and Francovich do not apply in relation to cases which have already been decided before exit day (see sub-paragraph (2)). Secondly, the exceptions to preserved and converted law set out in clause 5(4) (for the Charter of Fundamental Rights) and paragraphs 3 and 4 of Schedule 1 (for general principles and Francovich claims) will not apply in respect of proceedings which have begun before exit but are not decided until after exit (see sub-paragraph (3)). So, for example, a Francovich claim commenced before exit can be decided by a court after exit. Thirdly, the exceptions in paragraphs 1 to 4 of Schedule 1 (for validity, general principles and Francovich claims) will not apply in relation to any criminal conduct which occurred prior to exit day (see sub-paragraph (4)). Fourthly, sub-paragraph (5) provides that the restriction on challenges based on incompatibility with any of the general principles of EU law (set out in paragraph 3 of Schedule 1) does not apply in respect of certain proceedings begun up to three months after exit day. In order to fall within the scope of this sub-paragraph, any challenge must relate to something that occurred before exit day and may be made against either administrative action or domestic legislation other than Acts of Parliament or rules of law. It cannot be used in relation to: anything which gives effect to or enforces an Act of Parliament or rule of law; or anything which could not have been different as a result of any Act of Parliament or rule of law. Courts, tribunals and other public authorities will be able to disapply legislation or quash conduct in the event of a successful challenge.

309 Finally, sub-paragraph (6) provides that a court, tribunal or other public authority will, on or after exit day, still be able to disapply any enactment or rule of law, or quash any conduct on the basis of incompatibility with the general principles where it is a necessary consequence of a decision made by a court or tribunal before exit day, or decisions in proceedings commenced during the three month period after exit day provided for under paragraph 27(5). This saves the effect of case law in which the courts have disapplied a provision of pre-exit legislation on the grounds that it is incompatible with one of the general principles of EU law.

Main powers in connection with withdrawal

310 Paragraph 28 clarifies that although certain powers in the Bill expire, the regulations made under them do not expire.

Devolution

311 Sub-paragraph (1) of paragraph 29 provides that the amendments made to the devolution legislation by clause 11 and Part 1 of Schedule 3 do not affect the validity of devolved primary legislation that has been made and is in force before exit day, or secondary legislation that has been made, confirmed or approved and is in force before exit day. Paragraph 30 makes equivalent provision in respect of administrative acts done before exit day.

312 Sub-paragraphs (3) to (5) of paragraph 29 disapply the current EU law limits on competence so that primary legislation can be passed validly before exit day in relation to an area that has been released from the interim competence arrangement by Order in Council, provided the legislation comes into force on or after exit and is passed at a time when the relevant Order in Council has been made. Sub-paragraphs (6) to (8) make similar provision in relation to the making, confirming or approving of secondary legislation before exit day.

313 Sub-paragraph (9) disapplies – for the purposes of 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. If this restriction was not lifted the devolved administrations would be unable to start making regulations to fix all the deficiencies in devolved law and making other provisions to prepare for EU withdrawal until after the UK left the EU (as some of the necessary changes would inevitably be incompatible with EU law). Therefore the restriction needs to be lifted so that the devolved administrations are able to start making the necessary legislation before exit day so that those changes are ready to come into force on exit day.

Other provision

314 Paragraph 31 is a transitional provision related to the definition of ‘relevant criminal offence’ and reflects a pending amendment to the Regulation of Investigatory Powers Act 2011.

315 Paragraph 32 makes transitional provision for the amendment to section 56 Finance Act 1973. It deals with payment after exit for services etc received before exit. It also saves the effect of section 56 where regulations made under it are preserved and the service is still being provided post exit.

Schedule 9: Additional repeals
 

316 Schedule 9 lists further legislation which is repealed, either in whole or in part, by the European Union (Withdrawal) Bill.