European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 10

(b) the prior enactment of a statute by Parliament approving the final terms
of withdrawal of the United Kingdom from the European Union.

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

(3) 5But regulations under this section may not—

(a) impose or increase taxation or fees,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) establish a public authority, or

(e) 10amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

(4) No regulations may be made under this section after exit day.

12 Maintenance of refugee family unity within Europe

(1) A Minister of the Crown must make appropriate arrangements with the aim of
15preserving specified effects in the United Kingdom of Regulation (EU) No.
604/2013 (the “Dublin Regulation”), including through negotiations with the
EU.

(2) “Specified effects” under subsection (1) are those provisions, and associated
rights and obligations, that allow for those seeking asylum, including
20unaccompanied minors, adults and children, to join a family member, sibling
or relative in the United Kingdom.

(3) Within six months of the passing of this Act, and then every six months
thereafter, a Minister of the Crown must report to Parliament on progress
made in negotiations to secure the continuation of reciprocal arrangements
25between the United Kingdom and member States as they relate to subsection
(1).

Devolution

13 Continuation of North-South co-operation and the prevention of new border
arrangements

(1) 30In exercising any of the powers under this Act, a Minister of the Crown or
devolved authority must—

(a) act in a way that is compatible with the terms of the Northern Ireland
Act 1998, and

(b) have due regard to the joint report from the negotiators of the EU and
35the United Kingdom Government on progress during phase 1 of
negotiations under Article 50 of the Treaty on European Union.

(2) Nothing in section 9, 8, 11 or 22 of this Act authorises regulations which—

(a) diminish any form of North-South cooperation across the full range of
political, economic, security, societal and agricultural contexts and
40frameworks of co-operation, including the continued operation of the
North-South implementation bodies, or

(b) create or facilitate border arrangements between Northern Ireland and
the Republic of Ireland after exit day which feature—

(i) physical infrastructure, including border posts,

European Union (Withdrawal) BillPage 11

(ii) a requirement for customs or regulatory compliance checks,

(iii) a requirement for security checks,

(iv) random checks on goods vehicles, or

(v) any other checks and controls,

5that did not exist before exit day and are not subject to an agreement between
Her Majesty’s Government and the Government of Ireland.

14 Corresponding powers involving devolved authorities

Schedule 2 (which confers powers to make regulations involving devolved
authorities which correspond to the powers conferred by sections 9 and 11) has
10effect.

15 Retaining EU restrictions in devolution legislation etc.

(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for the Scottish
Parliament to legislate incompatibly with EU law) for “with EU law” substitute
“in breach of the restriction in section 30A(1)”.

(2) 15After section 30 of that Act (legislative competence: supplementary) insert—

30A Legislative competence: restriction relating to retained EU law

(1) An Act of the Scottish Parliament cannot modify, or confer power by
subordinate legislation to modify, retained EU law so far as the
modification is of a description specified in regulations made by a
20Minister of the Crown.

(2) But subsection (1) does not apply to any modification so far as it would,
immediately before exit day, have been within the legislative
competence of the Parliament.

(3) A Minister of the Crown must not lay for approval before each House
25of the Parliament of the United Kingdom a draft of a statutory
instrument containing regulations under this section unless—

(a) the Scottish Parliament has made a consent decision in relation
to the laying of the draft, or

(b) the 40 day period has ended without the Parliament having
30made such a decision.

(4) For the purposes of subsection (3) a consent decision is—

(a) a decision to agree a motion consenting to the laying of the
draft,

(b) a decision not to agree a motion consenting to the laying of the
35draft, or

(c) a decision to agree a motion refusing to consent to the laying of
the draft;

and a consent decision is made when the Parliament first makes a
decision falling within any of paragraphs (a) to (c) (whether or not it
40subsequently makes another such decision).

(5) A Minister of the Crown who is proposing to lay a draft as mentioned
in subsection (3) must—

(a) provide a copy of the draft to the Scottish Ministers, and

(b) inform the Presiding Officer that a copy has been so provided.

European Union (Withdrawal) BillPage 12

(6) See also paragraph 6 of Schedule 7 (duty to make explanatory
statement about regulations under this section including a duty to
explain any decision to lay a draft without the consent of the
Parliament).

(7) 5No regulations may be made under this section after the end of the
period of two years beginning with exit day.

(8) Subsection (7) does not affect the continuation in force of regulations
made under this section at or before the end of the period mentioned in
that subsection.

(9) 10Any regulations under this section which are in force at the end of the
period of five years beginning with the time at which they came into
force are revoked in their application to any Act of the Scottish
Parliament which receives Royal Assent after the end of that period.

(10) Subsections (3) to (8) do not apply in relation to regulations which only
15relate to a revocation of a specification.

(11) In this section—

  • “the 40 day period” means the period of 40 days beginning with
    the day on which a copy of the draft instrument is provided to
    the Scottish Ministers,

20and, in calculating that period, no account is to be taken of any time
during which the Parliament is dissolved or during which it is in recess
for more than four days.”

(3) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for
the National Assembly for Wales to legislate incompatibly with EU law) for
25“with EU law” substitute “in breach of the restriction in section 109A(1)”.

(4) After section 109 of that Act (legislative competence: supplementary) insert—

109A Legislative competence: restriction relating to retained EU law

(1) An Act of the Assembly cannot modify, or confer power by subordinate
legislation to modify, retained EU law so far as the modification is of a
30description specified in regulations made by a Minister of the Crown.

(2) But subsection (1) does not apply to any modification so far as it would,
immediately before exit day, have been within the Assembly’s
legislative competence.

(3) No regulations are to be made under this section unless a draft of the
35statutory instrument containing them has been laid before, and
approved by a resolution of, each House of Parliament.

(4) A Minister of the Crown must not lay a draft as mentioned in
subsection (3) unless—

(a) the Assembly has made a consent decision in relation to the
40laying of the draft, or

(b) the 40 day period has ended without the Assembly having
made such a decision.

(5) For the purposes of subsection (4) a consent decision is—

(a) a decision to agree a motion consenting to the laying of the
45draft,

European Union (Withdrawal) BillPage 13

(b) a decision not to agree a motion consenting to the laying of the
draft, or

(c) a decision to agree a motion refusing to consent to the laying of
the draft;

5and a consent decision is made when the Assembly first makes a
decision falling within any of paragraphs (a) to (c) (whether or not it
subsequently makes another such decision).

(6) A Minister of the Crown who is proposing to lay a draft as mentioned
in subsection (3) must—

(a) 10provide a copy of the draft to the Welsh Ministers, and

(b) inform the Presiding Officer that a copy has been so provided.

(7) See also section 157ZA (duty to make explanatory statement about
regulations under this section including a duty to explain any decision
to lay a draft without the consent of the Assembly).

(8) 15No regulations may be made under this section after the end of the
period of two years beginning with exit day.

(9) Subsection (8) does not affect the continuation in force of regulations
made under this section at or before the end of the period mentioned in
that subsection.

(10) 20Any regulations under this section which are in force at the end of the
period of five years beginning with the time at which they came into
force are revoked in their application to any Act of the Assembly which
receives Royal Assent after the end of that period.

(11) Subsections (4) to (9) do not apply in relation to regulations which only
25relate to a revocation of a specification.

(12) In this section—

  • “the 40 day period” means the period of 40 days beginning with
    the day on which a copy of the draft instrument is provided to
    the Welsh Ministers,

30and, in calculating that period, no account is to be taken of any time
during which the Assembly is dissolved or during which it is in recess
for more than four days.”

(5) In section 6(2)(d) of the Northern Ireland Act 1998 (no competence for the
Northern Ireland Assembly to legislate incompatibly with EU law) for
35“incompatible with EU law” substitute “in breach of the restriction in section
6A(1)”.

(6) After section 6 of that Act (legislative competence) insert—

6A Restriction relating to retained EU law

(1) An Act of the Assembly cannot modify, or confer power by subordinate
40legislation to modify, retained EU law so far as the modification is of a
description specified in regulations made by a Minister of the Crown.

(2) But subsection (1) does not apply to any modification so far as it would,
immediately before exit day, have been within the legislative
competence of the Assembly.

European Union (Withdrawal) BillPage 14

(3) A Minister of the Crown must not lay for approval before each House
of Parliament a draft of a statutory instrument containing regulations
under this section unless—

(a) the Assembly has made a consent decision in relation to the
5laying of the draft, or

(b) the 40 day period has ended without the Assembly having
made such a decision.

(4) For the purposes of subsection (3) a consent decision is—

(a) a decision to agree a motion consenting to the laying of the
10draft,

(b) a decision not to agree a motion consenting to the laying of the
draft, or

(c) a decision to agree a motion refusing to consent to the laying of
the draft;

15and a consent decision is made when the Assembly first makes a
decision falling within any of paragraphs (a) to (c) (whether or not it
subsequently makes another such decision).

(5) A Minister of the Crown who is proposing to lay a draft as mentioned
in subsection (3) must—

(a) 20provide a copy of the draft to the relevant Northern Ireland
department, and

(b) inform the Presiding Officer that a copy has been so provided.

(6) See also section 96A (duty to make explanatory statement about
regulations under this section including a duty to explain any decision
25to lay a draft without the consent of the Assembly).

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

(8) Subsection (7) does not affect the continuation in force of regulations
made under this section at or before the end of the period mentioned in
30that subsection.

(9) Any regulations under this section which are in force at the end of the
period of five years beginning with the time at which they came into
force are revoked in their application to any Act of the Assembly which
receives Royal Assent after the end of that period.

(10) 35Subsections (3) to (8) do not apply in relation to regulations which only
relate to a revocation of a specification.

(11) Regulations under this section may include such supplementary,
incidental, consequential, transitional, transitory or saving provision as
the Minister of the Crown making them considers appropriate.

(12) 40In this section—

  • “the relevant Northern Ireland department” means such Northern
    Ireland department as the Minister of the Crown concerned
    considers appropriate;

  • “the 40 day period” means the period of 40 days beginning with
    45the day on which a copy of the draft instrument is provided to
    the relevant Northern Ireland department,

European Union (Withdrawal) BillPage 15

and, in calculating that period, no account is to be taken of any time
during which the Assembly is dissolved or during which it is in recess
for more than four days.”

(7) Part 1 of Schedule 3 (which makes corresponding provision in relation to
5executive competence to that made by subsections (1) to (6) in relation to
legislative competence) has effect.

(8) Part 2 of Schedule 3 (which imposes reporting obligations on a Minister of the
Crown in recognition of the fact that the powers to make regulations conferred
by subsections (1) to (6) and Part 1 of Schedule 3, and any restrictions arising
10by virtue of them, are intended to be temporary) has effect.

(9) A Minister of the Crown may by regulations—

(a) repeal any of the following provisions—

(i) section 30A or 57(4) to (15) of the Scotland Act 1998,

(ii) section 80(8) to (8L) or 109A of the Government of Wales Act
152006, or

(iii) section 6A or 24(3) to (15) of the Northern Ireland Act 1998, or

(b) modify any enactment in consequence of any such repeal.

(10) Until all of the provisions mentioned in subsection (9)(a) have been repealed, a
Minister of the Crown must, after the end of each review period, consider
20whether it is appropriate—

(a) to repeal each of those provisions so far as it has not been repealed, or

(b) to revoke any regulations made under any of those provisions so far as
they have not been revoked.

(11) In considering whether to exercise the power to make regulations under
25subsection (9), a Minister of the Crown must have regard (among other things)
to—

(a) the fact that the powers to make regulations conferred by the
provisions mentioned in subsection (9)(a), and any restrictions arising
by virtue of them, are intended to be temporary and, where
30appropriate, replaced with other arrangements, and

(b) any progress which has been made in implementing those other
arrangements.

(12) Part 3 of Schedule 3 (which contains amendments of devolution legislation not
dealt with elsewhere) has effect.

(13) 35In this section—

  • “arrangement” means any enactment or other arrangement (whether or
    not legally enforceable);

  • “review period” means—

    (a)

    the period of three months beginning with the day on which
    40subsection (10) comes into force, and

    (b)

    after that, each successive period of three months.

Financial and other matters

16 Financial provision

(1) Schedule 4 (which contains powers in connection with fees and charges) has
45effect.

European Union (Withdrawal) BillPage 16

(2) A Minister of the Crown, government department or devolved authority may
incur expenditure, for the purpose of, or in connection with, preparing for
anything about which provision may be made under a power to make
subordinate legislation conferred or modified by or under this Act, before any
5such provision is made.

(3) There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown, government
department or other public authority by virtue of this Act, and

(b) any increase attributable to this Act in the sums payable by virtue of
10any other Act out of money so provided.

(4) Subsection (3) is subject to any other provision made by or under this Act or
any other enactment.

17 Publication and rules of evidence

(1) Part 1 of Schedule 5 (which makes provision for the publication by the Queen’s
15Printer of copies of retained direct EU legislation and related information) has
effect.

(2) Part 2 of Schedule 5 (which makes provision about rules of evidence) has effect.

General and final provision

18 Future interaction with the law and agencies of the EU

20Nothing in this Act shall prevent the United Kingdom from—

(a) replicating in domestic law any EU law made on or after exit day, or

(b) continuing to participate in, or have a formal relationship with, the
agencies of the European Union after exit day.

19 Interpretation

(1) 25In this Act—

  • “Charter of Fundamental Rights” means the Charter of Fundamental
    Rights of the European Union of 7 December 2000, as adapted at
    Strasbourg on 12 December 2007;

  • “devolved authority” means—

    (a)

    30the Scottish Ministers,

    (b)

    the Welsh Ministers, or

    (c)

    a Northern Ireland department;

  • “domestic law” means—

    (a)

    in section 3, the law of England and Wales, Scotland and
    35Northern Ireland, and

    (b)

    in any other case, the law of England and Wales, Scotland or
    Northern Ireland;

  • “the EEA” means the European Economic Area;

  • “enactment” means an enactment whenever passed or made and
    40includes—

    (a)

    an enactment contained in any Order in Council, order, rules,
    regulations, scheme, warrant, byelaw or other instrument made
    under an Act,

    European Union (Withdrawal) BillPage 17

    (b)

    an enactment contained in any Order in Council made in
    exercise of Her Majesty’s Prerogative,

    (c)

    an enactment contained in, or in an instrument made under, an
    Act of the Scottish Parliament,

    (d)

    5an enactment contained in, or in an instrument made under, a
    Measure or Act of the National Assembly for Wales,

    (e)

    an enactment contained in, or in an instrument made under,
    Northern Ireland legislation,

    (f)

    an enactment contained in any instrument made by a member
    10of the Scottish Government, the Welsh Ministers, the First
    Minister for Wales, the Counsel General to the Welsh
    Government, a Northern Ireland Minister, the First Minister in
    Northern Ireland, the deputy First Minister in Northern Ireland
    or a Northern Ireland department in exercise of prerogative or
    15other executive functions of Her Majesty which are exercisable
    by such a person on behalf of Her Majesty,

    (g)

    an enactment contained in, or in an instrument made under, a
    Measure of the Church Assembly or of the General Synod of the
    Church of England, and

    (h)

    20except in sections 2 and 8 or where there is otherwise a contrary
    intention, any retained direct EU legislation;

  • EU decision” means—

    (a)

    a decision within the meaning of Article 288 of the Treaty on the
    Functioning of the European Union, or

    (b)

    25a decision under former Article 34(2)(c) of the Treaty on
    European Union;

  • EU directive” means a directive within the meaning of Article 288 of the
    Treaty on the Functioning of the European Union;

  • EU entity” means an EU institution or any office, body or agency of the
    30EU;

  • EU reference” means—

    (a)

    any reference to the EU, an EU entity or a member State,

    (b)

    any reference to an EU directive or any other EU law, or

    (c)

    any other reference which relates to the EU;

  • 35EU regulation” means a regulation within the meaning of Article 288 of
    the Treaty on the Functioning of the European Union;

  • EU tertiary legislation” means—

    (a)

    any provision made under—

    (i)

    an EU regulation,

    (ii)

    40a decision within the meaning of Article 288 of the
    Treaty on the Functioning of the European Union, or

    (iii)

    an EU directive,

    by virtue of Article 290 or 291(2) of the Treaty on the
    Functioning of the European Union or former Article 202 of the
    45Treaty establishing the European Community, or

    (b)

    any measure adopted in accordance with former Article 34(2)(c)
    of the Treaty on European Union to implement decisions under
    former Article 34(2)(c),

    but does not include any such provision or measure which is an EU
    50directive;

European Union (Withdrawal) BillPage 18

  • “exempt EU instrument” means anything which is an exempt EU
    instrument by virtue of Schedule 6;

  • “exit day” means such day as a Minister of the Crown may by regulations
    appoint (and see subsection (2));

  • 5“member State” (except in the definitions of “direct EU legislation” and
    EU reference”) does not include the United Kingdom;

  • “Minister of the Crown” has the same meaning as in the Ministers of the
    Crown Act 1975 and also includes the Commissioners for Her
    Majesty’s Revenue and Customs;

  • 10“modify” includes amend, repeal or revoke (and related expressions are
    to be read accordingly);

  • “Northern Ireland devolved authority” means the First Minister and
    deputy First Minister in Northern Ireland acting jointly, a Northern
    Ireland Minister or a Northern Ireland department;

  • 15“primary legislation” means—

    (a)

    an Act of Parliament,

    (b)

    an Act of the Scottish Parliament,

    (c)

    a Measure or Act of the National Assembly for Wales, or

    (d)

    Northern Ireland legislation;

  • 20“public authority” means a public authority within the meaning of section
    6 of the Human Rights Act 1998;

  • “relevant criminal offence” means an offence for which an individual who
    has reached the age of 18 (or, in relation to Scotland or Northern
    Ireland, 21) is capable of being sentenced to imprisonment for a term of
    25more than 2 years (ignoring any enactment prohibiting or restricting
    the imprisonment of individuals who have no previous convictions);

  • “retained direct EU legislation” means any direct EU legislation which
    forms part of domestic law by virtue of section 3 (as modified by or
    under this Act or by other domestic law from time to time, and
    30including any instruments made under it on or after exit day);

  • “retrospective provision”, in relation to provision made by regulations,
    means provision taking effect from a date earlier than the date on which
    the regulations are made;

  • “subordinate legislation” means—

    (a)

    35any Order in Council, order, rules, regulations, scheme,
    warrant, byelaw or other instrument made under any Act, or

    (b)

    any instrument made under an Act of the Scottish Parliament,
    Northern Ireland legislation or a Measure or Act of the National
    Assembly for Wales,

    40and (except in section 8 or Schedule 2 or where there is a contrary
    intention) includes any Order in Council, order, rules, regulations,
    scheme, warrant, byelaw or other instrument made on or after exit day
    under any retained direct EU legislation;

  • “tribunal” means any tribunal in which legal proceedings may be
    45brought;

  • “Wales” and “Welsh zone” have the same meaning as in the Government
    of Wales Act 2006 (see section 158 of that Act);

  • “withdrawal agreement” means an agreement (whether or not ratified)
    between the United Kingdom and the EU under Article 50(2) of the
    50Treaty on European Union which sets out the arrangements for the
    United Kingdom’s withdrawal from the EU.

European Union (Withdrawal) BillPage 19

(2) In this Act—

(a) where a Minister of the Crown appoints a time as well as a day as exit
day (see paragraph 24 of Schedule 7), references to before, after or on
that day, or to beginning with that day, are to be read as references to
5before, after or at that time on that day or (as the case may be) to
beginning with that time on that day, and

(b) where a Minister of the Crown does not appoint a time as well as a day
as exit day, the reference to exit day in section 1 is to be read as a
reference to the beginning of that day.

(3) 10In this Act references to anything which continues to be domestic law by virtue
of section 2 include references to anything to which subsection (1) of that
section applies which continues to be domestic law on or after exit day
(whether or not it would have done so irrespective of that section).

(4) In this Act references to anything which is retained EU law by virtue of section
155 include references to any modifications, made by or under this Act or by
other domestic law from time to time, of the rights, powers, liabilities,
obligations, restrictions, remedies or procedures concerned.

(5) References in this Act (however expressed) to a public authority in the United
Kingdom include references to a public authority in any part of the United
20Kingdom.

(6) References in this Act to former Article 34(2)(c) of the Treaty on European
Union are references to that Article as it had effect at any time before the
coming into force of the Treaty of Lisbon.

(7) Any other reference in this Act to—

(a) 25an Article of the Treaty on European Union or the Treaty on the
Functioning of the European Union, or

(b) Article 10 of Title VII of Protocol 36 to those treaties,

includes a reference to that Article as applied by Article 106a of the Euratom
Treaty.

20 30Index of defined expressions

(1) In this Act, the expressions listed in the left-hand column have the meaning
given by, or are to be interpreted in accordance with, the provisions listed in
the right-hand column.

Expression Provision
Anything which continues to be domestic law by virtue of
section 2
35Section 19(3)
Anything which is retained EU law by virtue of section 5 Section 19(4)
Article (in relation to the Treaty on European Union or the
Treaty on the Functioning of the European Union)
Section 19(7)
Charter of Fundamental Rights 40Section 19(1)
Devolved authority Section 19(1)