European Union (Withdrawal) Bill (HL Bill 79)

(2) The instrument may be made without a draft of the instrument being laid
before, and approved by a resolution of, each House of Parliament if it
contains a declaration that the Minister of the Crown concerned is of the
opinion that, by reason of urgency, it is necessary to make the regulations
5without a draft being so laid and approved.

(3) After an instrument is made in accordance with sub-paragraph (2), it must
be laid before each House of Parliament.

(4) Regulations contained in an instrument made in accordance with sub-
paragraph (2) cease to have effect at the end of the period of one month
10beginning with the day on which the instrument is made unless, during that
period, the instrument is approved by a resolution of each House of
Parliament.

(5) In calculating the period of one month, no account is to be taken of any time
during which—

(a) 15Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) affect the validity of anything previously done under the
20regulations, or

(b) prevent the making of new regulations.

(7) Sub-paragraph (8) applies to a statutory instrument to which paragraph 6(3)
or 7(3) applies where the Minister of the Crown who is to make the
instrument is of the opinion that the appropriate procedure for the
25instrument is for it to be subject to annulment in pursuance of a resolution
of either House of Parliament.

(8) Paragraph 13 does not apply in relation to the instrument if the instrument
contains a declaration that the Minister is of the opinion that, by reason of
urgency, it is necessary to make the regulations without meeting the
30requirements of that paragraph.

Part 3 General provision about powers under Act

Scope and nature of powers: general

15 (1) Any power to make regulations under this Act—

(a) 35so far as exercisable by a Minister of the Crown or by a Minister of
the Crown acting jointly with a devolved authority, is exercisable by
statutory instrument,

(b) so far as exercisable by the Welsh Ministers or by the Welsh Ministers
acting jointly with a Minister of the Crown, is exercisable by
40statutory instrument, and

(c) so far as exercisable by a Northern Ireland department (other than
when acting jointly with a Minister of the Crown), is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979 (SI 1979/1573 (NI 12)) (and not by statutory
45instrument).

(2) For regulations made under this Act by the Scottish Ministers, see also
section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010
(asp 10) (Scottish statutory instruments).

16 Any power to make regulations under this Act—

(a) 5may be exercised so as to—

(i) modify retained EU law, or

(ii) make different provision for different cases or descriptions of
case, different circumstances, different purposes or different
areas, and

(b) 10includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision (including provision re-
stating any retained EU law in a clearer or more accessible way).

17 The fact that a power to make regulations is conferred by this Act does not
affect the extent of any other power to make regulations under this Act.

15Scope of consequential and transitional powers

18 (1) The fact that anything continues to be, or forms part of, domestic law by
virtue of any provision of sections 2 to 6 or Schedule 1 does not prevent it
from being modified by regulations made under section 17(1) in
consequence of any other provision made by or under this Act.

(2) 20Accordingly, any retained EU law may, for example, be modified by
regulations made under section 17(1) in consequence of the repeal of any
enactment contained in the European Communities Act 1972.

(3) The power to make regulations under section 17(5) includes the power to
make transitional, transitory or saving provision in connection with—

(a) 25the repeal of any enactment contained in the European Communities
Act 1972, or

(b) the withdrawal of the United Kingdom from the EU,

which is additional to that made by any provision of sections 2 to 6 or
Schedule 1 or alters its effect in particular cases or descriptions of case.

(4) 30The power to make regulations under section 17(1) includes the power to
make transitional, transitory or saving provision which—

(a) is in connection with any repeal or revocation made by any such
regulations of an enactment in consequence of—

(i) the repeal of any enactment contained in the European
35Communities Act 1972, or

(ii) the withdrawal of the United Kingdom from the EU, and

(b) is additional to that made by any provision of sections 2 to 6 or
Schedule 1 or alters its effect in particular cases or descriptions of
case.

(5) 40Provision of the kind mentioned in sub-paragraph (3) or (4) may (among
other things) include further provision treating any provision of that kind as
retained EU law for particular purposes or all purposes.

Scope of appointed day powers

19 Any power of a Minister of the Crown under this Act to appoint a day
includes a power to appoint a time on that day if the Minister considers it
appropriate to do so.

5Effect of certain provisions in Schedule 8 on scope of powers

20 The modifications made by Part 1 of Schedule 8 and paragraphs 7 to 11 and
20 to 23 of that Schedule do not prevent or otherwise limit the making of
different provision, in particular cases or descriptions of case, in regulations
under section 17(1) or in any other regulations under this Act.

10Disapplication of certain review provisions

21 Section 28 of the Small Business, Enterprise and Employment Act 2015 (duty
to review regulatory provisions in secondary legislation) does not apply in
relation to any power to make regulations conferred by this Act.

Explanatory statements for certain powers: appropriateness, equalities etc.

22 (1) 15This paragraph applies where a statutory instrument containing regulations
under section 7(1), 8 or 9, or a draft of such an instrument, is to be laid before
each House of Parliament or before the House of Commons only.

(2) Before the instrument or draft is laid, the relevant Minister must make a
statement to the effect that in the Minister’s opinion the instrument or draft
20does no more than is appropriate.

(3) Before the instrument or draft is laid, the relevant Minister must make a
statement—

(a) as to whether the instrument or draft amends, repeals or revokes any
provision of equalities legislation, and

(b) 25if it does, explaining the effect of each such amendment, repeal or
revocation.

(4) Before the instrument or draft is laid, the relevant Minister must make a
statement to the effect that, in relation to the instrument or draft, the Minister
has, so far as required to do so by equalities legislation, had due regard to
30the need to eliminate discrimination, harassment, victimisation and any
other conduct that is prohibited by or under the Equality Act 2010.

(5) Before the instrument or draft is laid, the relevant Minister must make a
statement otherwise explaining—

(a) the instrument or draft,

(b) 35the reasons for it,

(c) the law before exit day which is relevant to it, and

(d) its effect (if any) on retained EU law.

(6) If the relevant Minister fails to make a statement required by sub-paragraph
(2), (3), (4) or (5) before the instrument or draft is laid, a Minister of the
40Crown must make a statement explaining why the relevant Minister has
failed to do so.

(7) A statement under sub-paragraph (2), (3), (4), (5) or (6) must be made in
writing and be published in such manner as the Minister making it considers
appropriate.

(8) For the purposes of this paragraph, where an instrument or draft is laid
5before each House of Parliament on different days, the earlier day is to be
taken as the day on which it is laid before both Houses.

(9) This paragraph does not apply in relation to any laying before each House
of Parliament of an instrument or draft instrument where an equivalent
draft instrument (ignoring any differences relating to procedure) has
10previously been laid before both Houses or before the House of Commons
only.

(10) In this paragraph—

• “equalities legislation” means the Equality Act 2006, the Equality Act
  2010 or any subordinate legislation made under either of those Acts;

• 15“the relevant Minister” means the Minister of the Crown who makes, or
  is to make, the instrument.

Hybrid instruments

23 If an instrument, or a draft of an instrument, containing regulations under
this Act would, apart from this paragraph, be treated as a hybrid instrument
20for the purposes of the standing orders of either House of Parliament, it is to
proceed in that House as if it were not a hybrid instrument.

Procedure on re-exercise of certain powers

24 (1) An instrument to which paragraph 1(1) or (3), 1(6) or (7), 1(8) or (9), 1(10) or
(11), 2(3) or (4), 2(5) or (6), 2(10) or (11), 2(12) or (13), 4(2), 6(1) or (3), 7(1) or
25(3), 8(1) or (3), 12(2) or (4) or 14(2) applies which revokes, amends or re-
enacts any such instrument may (in spite of section 14 of the Interpretation
Act 1978) be subject to a different procedure under this Schedule from the
procedure to which the instrument containing the original regulations was
subject or, in the case of regulations under section 17(5), no procedure.

(2) 30The references in sub-paragraph (1) to paragraph 1(6) or (7), 1(8) or (9), 1(10)
or (11), 2(3) or (4), 2(5) or (6), 2(10) or (11) or 2(12) or (13) include references
to those provisions as applied by paragraph 6(5), 7(5) or 8(4).

Combinations of instruments

25 (1) Sub-paragraph (2) applies to a statutory instrument containing regulations
35under this Act which is subject to a procedure before Parliament that
requires the approval of the instrument in draft before it is made or its
approval after it is made.

(2) The statutory instrument may also include regulations under this Act or
another enactment which are made by statutory instrument which is subject
40to a procedure before Parliament that provides for the annulment of the
instrument after it has been made.

(3) Where regulations are included as mentioned in sub-paragraph (2), the
procedure applicable to the statutory instrument is the procedure
mentioned in sub-paragraph (1) and not the procedure mentioned in sub-
45paragraph (2).

(4) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under this Act which is subject to a procedure before
the National Assembly for Wales as they apply in relation to a statutory
instrument containing regulations under this Act which is subject to a
5procedure before Parliament but as if the references to Parliament were
references to the National Assembly for Wales.

(5) Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
in relation to a statutory instrument but as if the references to Parliament
were references to the Northern Ireland Assembly.

(6) 10Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under this Act which is subject to a procedure before
the Scottish Parliament, the National Assembly for Wales or the Northern
Ireland Assembly as well as a procedure before Parliament as they apply to
a statutory instrument containing regulations under this Act which is subject
15to a procedure before Parliament but as if the references to Parliament were
references to Parliament and the Scottish Parliament, the National Assembly
for Wales or (as the case may be) the Northern Ireland Assembly.

(7) This paragraph does not prevent the inclusion of other regulations in a
statutory instrument or statutory rule which contains regulations under this
20Act.

Section 17(4) and (6)

SCHEDULE 8 Consequential, transitional, transitory and saving provision

Part 1 General consequential provision

25Existing ambulatory references to retained direct EU legislation

1 (1) Any reference which, immediately before exit day—

(a) exists in—

(i) any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
30provision of the EEA agreement which is to form part of
domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
paragraph (i) or (ii), and

(b) is a reference to (as it has effect from time to time) any EU regulation,
35EU decision, EU tertiary legislation or provision of the EEA
agreement which is to form part of domestic law by virtue of section
3,

is to be read, on or after exit day, as a reference to the EU regulation, EU
decision, EU tertiary legislation or provision of the EEA agreement as it
40forms part of domestic law by virtue of section 3 and, unless the contrary
intention appears, as modified by domestic law from time to time.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) continues to be part of domestic law by virtue of section 2, and

(b) 5is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Other existing ambulatory references

2 (1) 10Any reference which—

(a) exists, immediately before exit day, in—

(i) any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
provision of the EEA agreement which is to form part of
15domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
paragraph (i) or (ii),

(b) is not a reference to which paragraph 1(1) applies, and

(c) is, immediately before exit day, a reference to (as it has effect from
20time to time) any of the EU Treaties, any EU instrument or any other
document of an EU entity,

is to be read, on or after exit day, as a reference to the EU Treaty, instrument
or document as it has effect immediately before exit day.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
25power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) continues to be part of domestic law by virtue of section 2, and

(b) is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) 30Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Existing powers to make subordinate legislation

3 (1) Any power to make, confirm or approve subordinate legislation which was
conferred before exit day is to be read, on or after exit day and so far as the
35context permits or requires, as being capable of being exercised to modify
(or, as the case may be, result in the modification of) any retained direct EU
legislation.

(2) Any subordinate legislation modifying any retained direct EU legislation
which is, or is to be, made, confirmed or approved by virtue of sub-
40paragraph (1) is to be subject to the same procedure (if any) before
Parliament, the Scottish Parliament, the National Assembly for Wales or the
Northern Ireland Assembly as would be the case for that legislation if it were
modifying other subordinate legislation.

(3) Any power to make, confirm or approve subordinate legislation which,
45immediately before exit day, is subject to an implied restriction that it is
exercisable only compatibly with EU law is to be read on or after exit day

without that restriction or any corresponding restriction in relation to
compatibility with retained EU law.

(4) Sub-paragraphs (1) to (3)—

(a) do not apply so far as section 57(4) of the Scotland Act 1998, section
580(8) of the Government of Wales Act 2006 or section 24(3) of the
Northern Ireland Act 1998 applies, and

(b) are subject to any other provision made by or under this Act or any
other enactment.

Review provisions in existing subordinate legislation

4 (1) 10In carrying out a review of a provision of subordinate legislation on or after
exit day (whether under provision made in accordance with section 28 of the
Small Business, Enterprise and Employment Act 2015 or otherwise), a
person is not required, by any pre-exit enactment, to have regard to how any
former EU obligation is implemented elsewhere than in the United
15Kingdom.

(2) In this paragraph—

• “former EU obligation” means an obligation by which the United
  Kingdom is, as a result of the United Kingdom’s withdrawal from
  the EU, no longer bound at the time of the review,

• 20“pre-exit enactment” means an Act passed, or subordinate legislation
  made, before exit day, and

• “subordinate legislation” does not include an instrument made under
  an Act of the Scottish Parliament, Northern Ireland legislation or a
  Measure or Act of the National Assembly for Wales.

25Future powers to make subordinate legislation

5 (1) Any power to make, confirm or approve subordinate legislation which is
conferred on or after exit day may, so far as applicable and unless the
contrary intention appears, be exercised so as to modify (or, as the case may
be, result in the modification of) any retained direct EU legislation.

(2) 30Sub-paragraph (1) does not apply so far as section 57(4) of the Scotland Act
1998, section 80(8) of the Government of Wales Act 2006 or section 24(3) of
the Northern Ireland Act 1998 applies.

Part 2 Specific consequential provision

35Finance Act 1973

6 In section 56 of the Finance Act 1973 (charges for services etc. by
Government departments), in subsection (1), omit “any EU obligation or”.

Interpretation Act 1978

7 The Interpretation Act 1978 is amended as follows.

8 40In section 21(1) (meaning of “subordinate legislation”) after “any Act” insert
“or made or to be made on or after exit day under any retained direct EU
legislation”.

9 After section 23 (application to other instruments) insert—

“23ZA Retained direct EU legislation

(1) The provisions of this Act (except sections 1 to 4, 13 and 19(2)) apply,
so far as applicable and unless the contrary intention appears, to any
5retained direct EU legislation so far as it—

(a) is amended by an Act, subordinate legislation or devolution
legislation, and

(b) is not subordinate legislation,

as they apply to an Act passed at the corresponding time.

(2) 10In their application by virtue of subsection (1)—

(a) section 10 has effect as if the reference to the passing of the
Act were a reference to the corresponding time,

(b) section 11 has effect as if the second reference to an Act
included a reference to the retained direct EU legislation so
15far as unamended (as well as a reference to that legislation so
far as amended), and

(c) section 16(1) has effect as if the reference to the repealing Act
not being passed were a reference to the repeal not having
been made.

(3) 20References in this Act to the repeal of an enactment are to be read, in
the case of an enactment which is retained direct EU legislation, as
references to the revocation of the enactment.

(4) In Schedule 1—

(a) in the definition of “Commencement”, the references to an
25enactment do not include any retained direct EU legislation
other than—

(i) any such legislation to which subsection (1) applies or

(ii) any instrument made on or after exit day under any
retained direct EU legislation, and

(b) 30in the definitions of “The Corporation Tax Acts” and “The
Income Tax Acts”, the references to an enactment do not
include any retained direct EU legislation.

(5) For the application of this Act to retained direct EU legislation which
is subordinate legislation, see section 23(1) and (2).

(6) 35In this section—

• “corresponding time” means the time when the amending Act,
  subordinate legislation or devolution legislation was passed
  or (as the case may be) made, and

• “devolution legislation” means—

  (a)

  40an Act of the Scottish Parliament,

  (b)

  a Measure or Act of the National Assembly for Wales,

  (c)

  Northern Ireland legislation (for the meaning of
  which see section 24(5)), or

  (d)

  an instrument made under anything falling within
  45paragraph (a), (b) or (c).”

10 In section 24 (application to Northern Ireland), in subsection (4)—

(a) omit “and related expressions”,

(b) after “Corporation Tax Acts;” insert—

• “E.C.S.C. Treaty;

• E.E.C. Treaty;”,

(c) after “state;” insert—

• 5“Entry date;

• The EU or the European Union;

• EU institution;

• EU instrument;

• Euratom, Economic Community and Coal and Steel
  10Community;

• Euratom Treaty;

• European Court;”,

(d) after “Income Tax Acts;” insert—

• “Member (in the expression “member State”);”, and

(e) 15after “The Tax Acts” insert “;

• The Treaties or the EU Treaties”.

11 In Schedule 1 (words and expressions defined)—

(a) omit ““The EU” or “the EU Treaties” and other expressions defined
by section 1 of and Schedule 1 to the European Communities Act
201972 have the meanings prescribed by that Act.”,

(b) omit the definition of “EEA agreement”,

(c) omit the definition of “EEA state”,

(d) in the definition of “enactment”, before “does” insert “includes any
retained direct EU legislation but”, and

(e) 25at the end insert—

“Definitions relating to the EU and the United Kingdom’s withdrawal

“The Communities” means Euratom, the Economic
Community and the Coal and Steel Community, but a
reference to any or all of those Communities is to be treated
30as being or including (as the context requires) a reference
to the EU.

“E.C.S.C. Treaty” means the Treaty establishing the
European Coal and Steel Community, signed at Paris on 18
April 1951.

35“EEA agreement” means the agreement on the European
Economic Area signed at Oporto on 2 May 1992, together
with the Protocol adjusting that Agreement signed at
Brussels on 17 March 1993, as modified or supplemented
from time to time, but does not include any retained direct
40EU legislation. [8 January 2007]

“EEA state”, in relation to a time, means—

(a) a state which at that time is a member State, or

(b) any other state which at that time is a party to the
EEA agreement. [8 January 2007]

“E.E.C. Treaty” means the Treaty establishing the
European Economic Community, signed at Rome on 25
March 1957.

“Entry date” means the date on which the United Kingdom
5became a member of the Communities (which neither
includes nor is a reference to the EU).

“The EU” or “the European Union” means the European
Union, being the Union established by the Treaty on
European Union signed at Maastricht on 7 February 1992
10(as amended by any later Treaty); and includes, so far as
the context permits or requires, Euratom.

“EU institution” means any institution of the EU.

“EU instrument” means any instrument issued by an EU
institution other than any retained direct EU legislation.

15“Euratom”, “Economic Community” and “Coal and Steel
Community” mean respectively the European Atomic
Energy Community, the European Economic Community
and the European Coal and Steel Community (but see the
definition of “the Communities” for provision as to the
20construction of references to those Communities).

“Euratom Treaty” means the Treaty establishing the
European Atomic Energy Community, signed at Rome on
25 March 1957.

“European Court” means the Court of Justice of the
25European Union.

“Exit day” (and related expressions) have the same
meaning as in the European Union (Withdrawal) Act 2018
(see section 14(1) to (5) of that Act).

“Member”, in the expression “member State”, refers to
30membership of the EU.

“Retained EU law” and “retained direct EU legislation”
have the same meaning as in the European Union
(Withdrawal) Act 2018 (see sections 6(7) and 14(1) of that
Act).

35“Retained EU obligation” means an obligation that—

(a) was created or arose by or under the EU Treaties
before exit day, and

(b) forms part of retained EU law,

as modified from time to time.

40“The Treaties” or “the EU Treaties” means the Treaties or
EU Treaties, within the meaning given by section 1(2) of
the European Communities Act 1972 as that Act had effect
immediately before its repeal by section 1 of the European
Union (Withdrawal) Act 2018, as at immediately before
45exit day.”