European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 80

(a) to modify otherwise than by way of amendment or revocation (or, as
the case may be, result in such modification of) any retained direct
principal EU legislation, or

(b) to modify (or, as the case may be, result in the modification of)
5anything which is retained EU law by virtue of section 5.

12 (1) Paragraphs 10 and 11 and this paragraph—

(a) do not prevent the conferral of wider powers,

(b) do 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
10Northern Ireland Act 1998 applies (or would apply when in force on
and after exit day), and

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

(2) For the purposes of paragraphs 10 and 11—

(a) 15a power is conferred whether or not it is in force,

(b) a power in retained direct EU legislation is conferred on or after the
day on which this Act is passed, and

(c) the references to powers conferred include powers conferred by
regulations under this Act (but not powers conferred by this Act).

(3) 20A power which, by virtue of paragraph 10 or 11 or any Act of Parliament
passed after, and in the same Session as, this Act, is capable of being
exercised to modify any retained EU law is capable of being so exercised
before exit day so as to come into force on or after exit day.

Explanatory statements for instruments amending or revoking regulations etc. under section
252(2) of the ECA

13 (1) This paragraph applies where, on or after exit day—

(a) a statutory instrument which amends or revokes any subordinate
legislation made under section 2(2) of the European Communities
Act 1972, or

(b) 30a 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 authority must make a
statement as to why, in the opinion of the relevant authority, there are good
35reasons for the amendment or revocation.

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

(a) the law which is relevant to the amendment or revocation, and

(b) the effect of the amendment or revocation on retained EU law.

(4) 40If the relevant authority fails to make a statement required by sub-paragraph
(2) or (3) before the instrument or draft is laid—

(a) a Minister of the Crown, or

(b) where the relevant authority is not a Minister of the Crown, the
relevant authority,

45must make a statement explaining why the relevant authority has failed to
make the statement as so required.


European Union (Withdrawal) BillPage 81

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

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

(7) This paragraph applies in relation to instruments whether the power to
make them is conferred before, on or after exit day including where the
power is conferred by regulations under this Act (but not where it is
conferred by this Act).

(8) 10This paragraph does not apply in relation to any laying before each House
of Parliament, or before the House of Commons only, of an instrument or
draft instrument where an equivalent draft instrument (ignoring any
differences relating to procedure) has previously been laid before both
Houses or before the House of Commons only.

(9) 15In this paragraph “the relevant authority” means—

(a) in the case of an Order in Council or Order of Council, the Minister
of the Crown who has responsibility in relation to the instrument,

(b) in the case of any other statutory instrument which is not made by a
Minister of the Crown, the person who makes, or is to make, the
20instrument, and

(c) in any other case, the Minister of the Crown who makes, or is to
make, the instrument.

14 (1) This paragraph applies where, on or after exit day—

(a) a Scottish statutory instrument which amends or revokes any
25subordinate legislation made under section 2(2) of the European
Communities Act 1972, or

(b) a draft of such an instrument,

is to be laid before the Scottish Parliament.

(2) Before the instrument or draft is laid, the relevant authority must make a
30statement as to why, in the opinion of the relevant authority, there are good
reasons for the amendment or revocation.

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

(a) the law which is relevant to the amendment or revocation, and

(b) 35the effect of the amendment or revocation on retained EU law.

(4) If the relevant authority fails to make a statement required by sub-paragraph
(2) or (3) before the instrument or draft is laid, the relevant authority must
make a statement explaining why the relevant authority has failed to make
the statement as so required.

(5) 40A statement under sub-paragraph (2), (3) or (4) must be made in writing and
be published in such manner as the relevant authority considers
appropriate.

(6) This paragraph applies in relation to instruments whether the power to
make them is conferred before, on or after exit day including where the
45power is conferred by regulations under this Act (but not where it is
conferred by this Act).

European Union (Withdrawal) BillPage 82

(7) In this paragraph “the relevant authority” means—

(a) in the case of a Scottish statutory instrument which is not made by
the Scottish Ministers, other than an Order in Council, the person
who makes, or is to make, the instrument, and

(b) 5in any other case, the Scottish Ministers.

Part 2 Specific consequential provision

Finance Act 1973

15 In section 56 of the Finance Act 1973 (charges for services etc. by
10Government departments), in subsection (1), omit “any EU obligation or”.

Interpretation Act 1978

16 The Interpretation Act 1978 is amended as follows.

17 In 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
15legislation”.

18 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
20retained 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) 25In 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
30far 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) 35References 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
40enactment do not include any retained direct EU legislation
other than—

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

European Union (Withdrawal) BillPage 83

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

(b) in the definitions of “The Corporation Tax Acts” and “The
Income Tax Acts”, the references to an enactment do not
5include 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) In this section—

  • “corresponding time” means the time when the amending Act,
    10subordinate legislation or devolution legislation was passed
    or (as the case may be) made, and

  • “devolution legislation” means—

    (a)

    an Act of the Scottish Parliament,

    (b)

    a Measure or Act of the National Assembly for Wales,

    (c)

    15Northern Ireland legislation (for the meaning of
    which see section 24(5)), or

    (d)

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

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

(a) 20omit “and related expressions”,

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

  • “E.C.S.C. Treaty;

  • E.E.C. Treaty;”,

(c) after “state;” insert—

  • 25“Entry date;

  • The EU or the European Union;

  • EU institution;

  • EU instrument;

  • Euratom, Economic Community and Coal and Steel
    30Community;

  • Euratom Treaty;

  • European Court;”,

(d) after “Income Tax Acts;” insert—

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

(e) 35after “The Tax Acts” insert ;

  • The Treaties or the EU Treaties”.

20 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
401972 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

European Union (Withdrawal) BillPage 84

(e) at 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
5reference to any or all of those Communities is to be treated
as 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
10April 1951.

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
15from time to time, but does not include any retained direct
EU 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
20EEA 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
25became 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
30(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.

35“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
40construction 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
45European Union.

European Union (Withdrawal) BillPage 85

“Exit day” (and related expressions) have the same
meaning as in the European Union (Withdrawal) Act 2018
(see section 19(1) and (2) of that Act).

“Member”, in the expression “member State”, refers to
5membership of the EU.

“Retained EU law”, “retained direct minor EU legislation”,
“retained direct principal EU legislation” and “retained
direct EU legislation” have the same meaning as in the
European Union (Withdrawal) Act 2018 (see sections 7(7),
108(6) and 19(1) of that Act).

“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,

15as modified from time to time.

“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
20Union (Withdrawal) Act 2018, as at immediately before
exit day.”

European Economic Area Act 1993

21 The European Economic Area Act 1993 is amended as follows.

22 Omit section 1 (EEA agreement to be an EU Treaty).

23 (1) 25Section 2 (consistent application of law to the whole of the EEA) is amended
as follows.

(2) In subsection (3)—

(a) in paragraph (a), after “Act” insert “as at immediately before exit
day”, and

(b) 30omit paragraph (b), the “or” before that paragraph and the words
after that paragraph.

(3) After that subsection insert—

(3A) This section is subject to any amendment, repeal, revocation or other
modification of retained EU law on or after exit day.”

(4) 35Omit subsections (4) to (6).

24 (1) Section 3 (general implementation of the EEA agreement) is amended as
follows.

(2) In subsection (3)—

(a) in paragraph (a), after “Act” insert “as at immediately before exit
40day”, and

(b) omit paragraph (b), the “or” before that paragraph and the words
after that paragraph.

European Union (Withdrawal) BillPage 86

(3) After subsection (4) insert—

(4A) This section is subject to any amendment, repeal, revocation or other
modification of retained EU law on or after exit day.”

25 Omit section 4 (modification of section 3 of the European Communities Act
51972).

26 In section 6 (interpretation), in subsection (1), in the definition of “the 1972
Act”, after “1972” insert (before its repeal by section 1 of the European Union
(Withdrawal) Act 2018)”.

Criminal Procedure (Scotland) Act 1995

27 (1) 10Section 288ZA of the Criminal Procedure (Scotland) Act 1995 (right of
Advocate General to take part in proceedings) is amended as follows.

(2) In subsection (2)—

(a) in paragraph (a)(ii), for “incompatible with EU law” substitute
“made unlawful by section 57(4) of the Scotland Act 1998 (restriction
15on subordinate legislation modifying retained EU law)”, and

(b) in paragraph (b), for “with EU law” substitute “in breach of the
restriction in section 30A(1) of the Scotland Act 1998 (restriction on
the modification of retained EU law)”.

(3) In subsection (3), omit paragraph (c).

20Human Rights Act 1998

28 (1) This paragraph has effect for the purposes of the Human Rights Act 1998.

(2) Any retained direct principal EU legislation is to be treated as primary
legislation.

(3) Any retained direct minor EU legislation is to be treated as primary
25legislation so far as it amends any primary legislation but otherwise is to be
treated as subordinate legislation.

(4) In this paragraph “amend”, “primary legislation” and “subordinate
legislation” have the same meaning as in the Human Rights Act 1998.

Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)

29 30The Interpretation and Legislative Reform (Scotland) Act 2010 is amended
as follows.

30 (1) Section 1 (application of Part 1 of the Act) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (b), after “day” insert “, in the case of Scottish
35instruments made as mentioned in paragraph (a) or (b) of the
definition of “Scottish instrument” in subsection (4),”, and

(b) after paragraph (b) (but before the “and” at the end of that
paragraph) insert—

(ba) Scottish instruments made on or after exit day, in the
40case of Scottish instruments made as mentioned in
paragraph (c) or (d) of the definition of “Scottish
instrument” in subsection (4),”.

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(3) In subsection (4)—

(a) omit the “or” at the end of paragraph (a), and

(b) after paragraph (b) insert—

(c) an Act of the Scottish Parliament (whenever passed)
5and any retained direct EU legislation (whenever
made), or

(d) an Act of the Scottish Parliament and an Act of
Parliament (in each case, whenever passed) and any
retained direct EU legislation (whenever made).”

(4) 10After subsection (9) insert—

(10) In this section “exit day” (and related expressions) and “retained
direct EU legislation” have the same meaning as in the European
Union (Withdrawal) Act 2018 (see section 19(1) and (2) of that Act).”

31 In section 30 (other instruments laid before the Scottish Parliament), after
15subsection (6), insert—

(7) This section does not apply in relation to any regulations made in
accordance with paragraph 6 of Schedule 7 to the European Union
(Withdrawal) Act 2018 (including that paragraph as applied by
paragraph 18(7) of that Schedule).”

32 20In section 37 (interpretation of Part 2 of the Act)—

(a) in the definition of “enactment”, at the end insert “and any retained
direct EU legislation”,

(b) after that definition insert—

  • ““retained direct EU legislation” has the same meaning
    25as in the European Union (Withdrawal) Act 2018 (see
    section 19(1) of that Act),”, and

(c) at the end insert—

  • ““subordinate legislation” includes an instrument made
    or to be made under any retained direct EU
    30legislation on or after exit day (within the meaning of
    the European Union (Withdrawal) Act 2018 (see
    section 19(1) and (2) of that Act)).”

33 In Schedule 1 (definitions of words and expressions)—

(a) omit from “the EU” to “meanings given by that Act”, and

(b) 35at the end insert—

“Definitions relating to the EU

“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
40as 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.

European Union (Withdrawal) BillPage 88

“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(within the meaning of the European Union (Withdrawal)
Act 2018 (see section 19(1) of that Act)).

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

“Euratom Treaty” means the Treaty establishing the
European Atomic Energy Community, signed at Rome on
2525 March 1957.

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

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

30“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
35exit day (within the meaning of that Act (see section 19(1)
and (2) of that Act)).”

Small Business, Enterprise and Employment Act 2015

34 In section 30 of the Small Business, Enterprise and Employment Act 2015
(meaning of “provision for review”), in subsection (3)—

(a) 40omit “EU obligation or any other”, and

(b) omit “Member States or”.

European Union (Withdrawal) BillPage 89

Part 3 General transitional, transitory or saving provision

Continuation of existing acts etc.

35 (1) Anything done—

(a) 5in connection with anything which continues to be, or forms part of,
domestic law by virtue of section 2, 3, 5 or 7(3) or (6), or

(b) for a purpose mentioned in section 2(2)(a) or (b) of the European
Communities Act 1972 or otherwise related to the EU or the EEA,

if in force or effective immediately before exit day, continues to be in force
10or effective on and after exit day.

(2) Anything done—

(a) in connection with anything which continues to be, or forms part of,
domestic law by virtue of section 2, 3, 5 or 7(3) or (6), or

(b) for a purpose mentioned in section 2(2)(a) or (b) of the European
15Communities Act 1972 or otherwise related to the EU or the EEA,

which, immediately before exit day, is in the process of being done continues
to be done on and after exit day.

(3) Sub-paragraphs (1) and (2) are subject to—

(a) section 1 and the withdrawal of the United Kingdom from the EU,

(b) 20sections 2 to 7 and Schedule 1,

(c) any provision made under section 22(6), and

(d) any other provision made by or under this Act or any other
enactment.

(4) References in this paragraph to anything done include references to
25anything omitted to be done.

Part 4 Specific transitional, transitory and saving provision

Retention of existing EU law

36 Section 5(2)(b) does not apply in relation to any rights, powers, liabilities,
30obligations, restrictions, remedies or procedures so far as they are of a kind
recognised by a court or tribunal in the United Kingdom in a case decided
on or after exit day but begun before exit day (whether or not as an essential
part of the decision in the case).

37 (1) Subject as follows and subject to any provision made by regulations under
35section 22(6), section 6(4) and paragraphs 1 to 3 of Schedule 1 apply in
relation to anything occurring before exit day (as well as anything occurring
on or after exit day).

(2) Section 6(4) and paragraphs 1 to 3 of Schedule 1 do not affect any decision of
a court or tribunal made before exit day.

(3) 40Section 6(4) and paragraphs 3 and 3 of Schedule 1 do not apply in relation to
any proceedings begun, but not finally decided, before a court or tribunal in
the United Kingdom before exit day.