European Union (Withdrawal) Bill (HL Bill 79)

(2) No regulations may be made under this Part by the Welsh Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
exercisable by the Welsh Ministers acting jointly with a Minister of the
5Crown, unless the regulations are, to that extent, made jointly with the
Minister of the Crown.

(3) No regulations may be made under this Part by a Northern Ireland
department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
10under this Act is exercisable by—

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

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

15unless the regulations are, to that extent, made jointly with the Minister of
the Crown.

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

(a) an Act of the Scottish Parliament, an Act of the National Assembly
20for Wales or (as the case may be) an Act of the Northern Ireland
Assembly without the need for the consent of a Minister of the
Crown, or

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

(i) 25the Scottish Ministers, the First Minister or the Lord
Advocate acting alone,

(ii) the Welsh Ministers acting alone, or

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

30Requirement for consultation where it would otherwise be required

8 (1) No regulations may be made under this Part by the Welsh Ministers, so far
as they contain provision which, if contained in an Act of the National
Assembly for Wales, would require consultation with a Minister of the
Crown, unless the regulations are, to that extent, made after consulting with
35the Minister of the Crown.

(2) No regulations may be made under this Part by the Scottish Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
exercisable by the Scottish Ministers, the First Minister or the Lord Advocate
40after consulting with a Minister of the Crown, unless the regulations are, to
that extent, made after consulting with the Minister of the Crown.

(3) No regulations may be made under this Part by the Welsh Ministers, so far
as they contain provision which relates to a matter in respect of which a
power to make subordinate legislation otherwise than under this Act is
45exercisable by the Welsh Ministers after consulting with a Minister of the
Crown, unless the regulations are, to that extent, made after consulting with
the Minister of the Crown.

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

(5) Sub-paragraph (2), (3) or (4) does not apply if—

(a) the provision could be contained in an Act of the Scottish Parliament,
an Act of the National Assembly for Wales or (as the case may be) an
10Act of the Northern Ireland Assembly, and

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

(6) Sub-paragraph (2), (3) or (4) does not apply if—

(a) the provision could be contained in different subordinate legislation
15made otherwise than under this Act by—

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

(ii) the Welsh Ministers acting alone, or

(iii) (as the case may be), a Northern Ireland devolved authority
20acting alone, and

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

Meaning of devolved competence: Part 1

9 (1) A provision is within the devolved competence of the Scottish Ministers for
25the purposes of this Part if—

(a) it would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament (ignoring
section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law
and retained EU law), or

(b) 30it meets the conditions in sub-paragraph (2).

(2) The conditions are—

(a) the provision—

(i) amends or revokes subordinate legislation made before exit
day by the Scottish Ministers, the First Minister or the Lord
35Advocate, or

(ii) makes supplementary, incidental, consequential,
transitional, transitory or saving provision in connection
with any such amendment or revocation,

(b) the subject-matter of the provision does not go beyond the subject-
40matter of the subordinate legislation concerned,

(c) the provision only forms part of the law of Scotland,

(d) the provision does not confer or remove functions exercisable
otherwise than in or as regards Scotland, and

(e) the provision does not modify any enactment so far as the enactment
45cannot, by virtue of paragraph 1, 4 or 5 of Schedule 4 to the Scotland
Act 1998, be modified by an Act of the Scottish Parliament.

10 (1) A provision is within the devolved competence of the Welsh Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the Assembly
(ignoring section 108A(2)(e) of the Government of Wales Act 2006 so
far as relating to EU law and retained EU law but including any
5provision that could be made only with the consent of a Minister of
the Crown), or

(b) it meets the conditions in sub-paragraph (2).

(2) The conditions are—

(a) the provision—

(i) 10amends or revokes subordinate legislation made before exit
day by the Welsh Ministers or the National Assembly for
Wales constituted by the Government of Wales Act 1998, or

(ii) makes supplementary, incidental, consequential,
transitional, transitory or saving provision in connection
15with any such amendment or revocation,

(b) the subject-matter of the provision does not go beyond the subject-
matter of the subordinate legislation concerned,

(c) the provision only forms part of the law of England and Wales,

(d) the provision does not confer or remove functions exercisable
20otherwise than in relation to Wales or the Welsh zone, and

(e) the provision does not modify any enactment so far as the enactment
cannot, by virtue of paragraph 5, 6 or 7 of Schedule 7B to the
Government of Wales Act 2006, be modified by an Act of the
National Assembly for Wales.

11 (1) 25A provision is within the devolved competence of a Northern Ireland
department for the purposes of this Part if—

(a) the provision, if it were contained in an Act of the Northern Ireland
Assembly—

(i) would be within the legislative competence of the Assembly
30(ignoring section 6(2)(d) of the Northern Ireland Act 1998),
and

(ii) would not require the consent of the Secretary of State,

(b) the provision—

(i) amends or repeals Northern Ireland legislation, and

(ii) 35would, if it were contained in an Act of the Northern Ireland
Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
Act 1998) and require the consent of the Secretary of State, or

(c) the provision meets the conditions in sub-paragraph (2).

(2) 40The conditions are—

(a) the provision—

(i) amends or revokes subordinate legislation made before exit
day by a Northern Ireland devolved authority, or

(ii) makes supplementary, incidental, consequential,
45transitional, transitory or saving provision in connection
with any such amendment or revocation,

(b) the subject-matter of the provision does not go beyond the subject-
matter of the subordinate legislation concerned,

(c) the provision only forms part of the law of Northern Ireland,

(d) the provision does not confer or remove functions exercisable
otherwise than in or as regards Northern Ireland,

(e) the provision does not modify any enactment so far as the enactment
cannot, by virtue of section 7 of the Northern Ireland Act 1998, be
5modified by an Act of the Northern Ireland Assembly, and

(f) the provision does not deal with, or otherwise relate to, a matter to
which paragraph 22 of Schedule 2, or paragraph 42 of Schedule 3, to
the Northern Ireland Act 1998 applies.

12 References in paragraphs 9 to 11, in connection with the making of
10regulations under this Part, to the subject-matter of any provision or
subordinate legislation are to be read as references to the subject-matter of
the provision or subordinate legislation when the regulations concerned are
made.

Part 2 15Complying with international obligations

Power to comply with international obligations

13 (1) A devolved authority may by regulations make such provision as the
devolved authority considers appropriate to prevent or remedy any breach,
arising from the withdrawal of the United Kingdom from the EU, of the
20international obligations of the United Kingdom.

(2) A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate to prevent or
remedy any breach, arising from the withdrawal of the United Kingdom
from the EU, of the international obligations of the United Kingdom.

(3) 25Regulations under this Part may make any provision that could be made by
an Act of Parliament.

(4) But regulations under this Part may not—

(a) make retrospective provision,

(b) create a relevant criminal offence,

(c) 30be made to implement the withdrawal agreement,

(d) confer a power to legislate (other than a power to make rules of
procedure for a court or tribunal), or

(e) amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

(5) 35Sub-paragraph (4)(d) does not prevent any modification of a power to
legislate which involves an extension of the power and does not go beyond
the subject-matter of the power.

(6) No regulations may be made under this Part after the end of the period of
two years beginning with exit day.

(7) 40Regulations under this Part, so far as made by a devolved authority, are also
subject to paragraphs 14 to 17.

No power to make provision outside devolved competence

14 (1) No regulations may be made under this Part by a devolved authority unless
every provision of them is within the devolved competence of the devolved
authority.

(2) 5See paragraphs 18 to 20 for the meaning of “devolved competence” for the
purposes of this Part.

No power to modify retained direct EU legislation etc.

15 (1) No regulations may be made under this Part by a devolved authority which
modify any retained direct EU legislation or anything which is retained EU
10law by virtue of section 4.

(2) No regulations may be made under this Part by a devolved authority which,
when made, are inconsistent with any modification (whether or not in force)
made by this Act, or a Minister of the Crown under this Act, of—

(a) any retained direct EU legislation, or

(b) 15anything which is retained EU law by virtue of section 4.

(3) This paragraph does not prevent the Scottish Ministers from making
provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under
section 29(4C) of the Scotland Act 1998, and

(b) 20the provision would, by virtue of the Order, not be in breach of the
restriction in subsection (4A) of section 29 of that Act if the provision
were made in an Act of the Scottish Parliament when that subsection
and the Order are in force.

(4) This paragraph does not prevent the Welsh Ministers from making
25provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under
section 108A(10) of the Government of Wales Act 2006, and

(b) the provision would, by virtue of the Order, not be in breach of the
restriction in subsection (8) of section 108A of that Act if the
30provision were made in an Act of the National Assembly for Wales
when that subsection and the Order are in force.

(5) This paragraph does not prevent a Northern Ireland department from
making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under
35section 6(8) of the Northern Ireland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the
restriction in subsection (6) of section 6 of that Act if the provision
were made in an Act of the Northern Ireland Assembly when that
subsection and the Order are in force.

40Requirement for consent in certain circumstances

16 (1) No regulations may be made under this Part without the consent of a
Minister of the Crown by a devolved authority acting alone so far as the
regulations—

(a) are to come into force before exit day,

(b) are for the purpose of preventing or remedying any breach of the
WTO Agreement, or

(c) make provision about any quota arrangements or are incompatible
with any such arrangements.

(2) 5In sub-paragraph (1)(b) “the WTO Agreement” means the agreement
establishing the World Trade Organisation signed at Marrakesh on 15 April
1994 (as modified from time to time).

(3) In sub-paragraph (1)(c) “quota arrangements” means any arrangements for,
or in connection with, the division of responsibility within the United
10Kingdom or an area including the United Kingdom for—

(a) an international obligation, or

(b) any right or other benefit arising from such an obligation,

where the obligation is to achieve a result defined by reference to a quantity
(whether expressed as an amount, proportion or ratio or otherwise) or (as
15the case may be) the benefit is so defined.

Certain requirements for consent, joint exercise or consultation

17 Paragraphs 6 to 8 apply for the purposes of this Part as they apply for the
purposes of Part 1.

Meaning of devolved competence: Part 2

18 20A provision is within the devolved competence of the Scottish Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament (ignoring
section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law
25and retained EU law), or

(b) it is provision which could be made in other subordinate legislation
by the Scottish Ministers, the First Minister or the Lord Advocate
(ignoring section 57(2) of the Scotland Act 1998 so far as relating to
EU law and section 57(4) and (5) of that Act).

19 30A provision is within the devolved competence of the Welsh Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the Assembly
(ignoring section 108A(2)(e) of the Government of Wales Act 2006 so
35far as relating to EU law and retained EU law but including any
provision that could be made only with the consent of a Minister of
the Crown), or

(b) it is provision which could be made in other subordinate legislation
by the Welsh Ministers (ignoring section 80(8) of the Government of
40Wales Act 2006).

20 A provision is within the devolved competence of a Northern Ireland
department for the purposes of this Part if—

(a) the provision, if it were contained in an Act of the Northern Ireland
Assembly—

(i) 45would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998),
and

(ii) would not require the consent of the Secretary of State,

(b) the provision—

(i) amends or repeals Northern Ireland legislation, and

(ii) would, if it were contained in an Act of the Northern Ireland
5Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
Act 1998) and require the consent of the Secretary of State, or

(c) the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority (ignoring
10section 24(1)(b) and (3) and (4) of the Northern Ireland Act 1998).

Part 3 Implementing the withdrawal agreement

Power to implement withdrawal agreement

21 (1) A devolved authority may by regulations make such provision as the
15devolved authority considers appropriate for the purposes of implementing
the withdrawal agreement if the devolved authority considers that such
provision should be in force on or before exit day.

(2) A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate for the
20purposes of implementing the withdrawal agreement if they consider that
such provision should be in force on or before exit day.

(3) Regulations under this Part may make any provision that could be made by
an Act of Parliament.

(4) But regulations under this Part may not—

(a) 25impose or increase taxation,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) confer a power to legislate (other than a power to make rules of
procedure for a court or tribunal),

(e) 30modify this Act,

(f) modify any subordinate legislation made under this Act unless the
regulations are modifying any subordinate legislation made by the
devolved authority concerned or are made by a Minister of the
Crown acting jointly with a devolved authority, or

(g) 35amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

(5) Sub-paragraph (4)(d) does not prevent any modification of a power to
legislate which involves an extension of the power and does not go beyond
the subject-matter of the power.

(6) 40No regulations may be made under this Part after exit day.

(7) Regulations under this Part, so far as made by a devolved authority, are also
subject to paragraphs 22 to 26.

No power to make provision outside devolved competence

22 (1) No regulations may be made under this Part by a devolved authority unless
every provision of them is within the devolved competence of the devolved
authority.

(2) 5In this Part “devolved competence” has the same meaning as in Part 2 (see
paragraphs 18 to 20).

No power to modify retained direct EU legislation etc.

23 (1) No regulations may be made under this Part by a devolved authority which
modify any retained direct EU legislation or anything which is retained EU
10law by virtue of section 4.

(2) No regulations may be made under this Part by a devolved authority which,
when made, are inconsistent with any modification (whether or not in force)
made by this Act, or a Minister of the Crown under this Act, of—

(a) any retained direct EU legislation, or

(b) 15anything which is retained EU law by virtue of section 4.

(3) This paragraph does not prevent the Scottish Ministers from making
provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under
section 29(4C) of the Scotland Act 1998, and

(b) 20the provision would, by virtue of the Order, not be in breach of the
restriction in subsection (4A) of section 29 of that Act if the provision
were made in an Act of the Scottish Parliament when that subsection
and the Order are in force.

(4) This paragraph does not prevent the Welsh Ministers from making
25provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under
section 108A(10) of the Government of Wales Act 2006, and

(b) the provision would, by virtue of the Order, not be in breach of the
restriction in subsection (8) of section 108A of that Act if the
30provision were made in an Act of the National Assembly for Wales
when that subsection and the Order are in force.

(5) This paragraph does not prevent a Northern Ireland department from
making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under
35section 6(8) of the Northern Ireland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the
restriction in subsection (6) of section 6 of that Act if the provision
were made in an Act of the Northern Ireland Assembly when that
subsection and the Order are in force.

40No power to confer certain functions relating to EU tertiary legislation

24 No regulations may be made under this Part by a devolved authority which
confer functions which correspond to functions to make EU tertiary
legislation.

Requirement for consent in certain circumstances

25 (1) No regulations may be made under this Part without the consent of a
Minister of the Crown by a devolved authority acting alone so far as the
regulations make provision about any quota arrangements or are
5incompatible with any such arrangements.

(2) In sub-paragraph (1) “quota arrangements” means any arrangements for, or
in connection with, the division of responsibility within the United
Kingdom or an area including the United Kingdom for—

(a) an international obligation, or

(b) 10any right or other benefit arising from such an obligation,

where the obligation is to achieve a result defined by reference to a quantity
(whether expressed as an amount, proportion or ratio or otherwise) or (as
the case may be) the benefit is so defined.

Certain requirements for consent, joint exercise or consultation

26 15Paragraphs 6 to 8 apply for the purposes of this Part as they apply for the
purposes of Part 1.

Section 11(4) and (5)

SCHEDULE 3 Further amendments of devolution legislation

Part 1 20Corresponding provision in relation to executive competence

Scotland Act 1998

1 In section 57 of the Scotland Act 1998 (EU law and Convention rights)—

(a) in subsection (2) (no power for members of the Scottish Government
to make subordinate legislation, or otherwise act, incompatibly with
25EU law) omit “or with EU law”, and

(b) after subsection (3) insert—

“(4) A member of the Scottish Government has no power to make,
confirm or approve any subordinate legislation so far as the
legislation modifies retained EU law.

(5) 30Subsection (4) does not apply—

(a) so far as the modification would be within the
legislative competence of the Parliament if it were
included in an Act of the Scottish Parliament,

(b) to the making of regulations under Schedule 2 or 4 to
35the European Union (Withdrawal) Act 2018, or

(c) so far as Her Majesty may by Order in Council
provide.”

Government of Wales Act 2006

2 In section 80 of the Government of Wales Act 2006 (EU law) for subsection

(8) (no power for the First Minister, the Counsel General or the Welsh
Ministers to make, confirm or approve subordinate legislation, or otherwise
act, incompatibly with EU law etc.) substitute—

“(8) The Welsh Ministers have no power to make, confirm or approve
5any subordinate legislation so far as the legislation modifies retained
EU law.

(8A) Subsection (8) does not apply—

(a) so far as the modification would be within the legislative
competence of the Assembly if it were included in an Act of
10the Assembly,

(b) to the making of regulations under Schedule 2 or 4 to the
European Union (Withdrawal) Act 2018, or

(c) so far as Her Majesty may by Order in Council provide.

(8B) No recommendation is to be made to Her Majesty in Council to make
15an Order in Council under subsection (8A) unless a draft of the
statutory instrument containing the Order in Council has been laid
before, and approved by a resolution of, each House of Parliament
and the Assembly.”

Northern Ireland Act 1998

3 20In section 24 of the Northern Ireland Act 1998 (EU law, Convention rights
etc.)—

(a) omit subsection (1)(b) (no power for the First Minister, the deputy
First Minister, a Northern Ireland Minister or a Northern Ireland
department to make, confirm or approve subordinate legislation, or
25otherwise act, incompatibly with EU law), and

(b) after subsection (2) insert—

“(3) A Minister or Northern Ireland department has no power to
make, confirm or approve any subordinate legislation so far
as the legislation modifies retained EU law.

(4) 30Subsection (3) does not apply—

(a) so far as the modification would be within the
legislative competence of the Assembly if it were
included in an Act of the Assembly,

(b) to the making of regulations under Schedule 2 or 4 to
35the European Union (Withdrawal) Act 2018, or

(c) so far as Her Majesty may by Order in Council
provide.

(5) No recommendation shall be made to Her Majesty to make
an Order in Council under subsection (4) unless a draft of the
40Order—

(a) has been laid before and approved by resolution of
each House of Parliament, and

(b) has been laid before and approved by resolution of
the Assembly.”