European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 20

Expression Provision
Direct EU legislation Section 3(2)
Domestic law Section 19(1)
The EEA Section 19(1)
EEA agreement 5Schedule 1 to the
Interpretation Act 1978
Enactment Section 19(1)
The EU Schedule 1 to the
Interpretation Act 1978
EU decision 10Section 19(1)
EU directive Section 19(1)
EU entity Section 19(1)
EU institution Schedule 1 to the
Interpretation Act 1978
EU instrument 15Schedule 1 to the
Interpretation Act 1978
Euratom Treaty Schedule 1 to the
Interpretation Act 1978
EU reference Section 19(1)
EU regulation 20Section 19(1)
European Court Schedule 1 to the
Interpretation Act 1978
EU tertiary legislation Section 19(1)
EU Treaties Schedule 1 to the
25Interpretation Act 1978
Exempt EU instrument Section 19(1)
Exit day (and related expressions) Section 19(1) and (2)
Former Article 34(2)(c) of Treaty on European Union Section 19(6)
Member State Section 19(1) and Schedule 1
30to the Interpretation Act
1978
Minister of the Crown Section 19(1)
Modify (and related expressions) Section 19(1)
Northern Ireland devolved authority Section 19(1)
Operative (in relation to direct EU legislation) 35Section 3(3)
Primary legislation Section 19(1)
Public authority Section 19(1)
Public authority in the United Kingdom (however
expressed)
Section 19(5)

European Union (Withdrawal) BillPage 21

Expression Provision
Relevant criminal offence Section 19(1) (and
paragraph 42 of Schedule 8)
Retained case law Section 7(7)
Retained direct EU legislation 5Section 19(1)
Retained direct minor EU legislation Section 8(6)
Retained direct principal EU legislation Section 8(6)
Retained domestic case law Section 7(7)
Retained EU case law Section 7(7)
Retained EU law 10Section 7(7)
Retained general principles of EU law Section 7(7)
Retrospective provision Section 19(1)
Subordinate legislation Section 19(1)
Tribunal Section 19(1)
Wales 15Section 19(1)
Welsh zone Section 19(1)
Withdrawal agreement Section 19(1)

(2) See paragraph 20 of Schedule 8 for amendments made by this Act to Schedule
1 to the Interpretation Act 1978.

21 20Regulations

Schedule 7 (which makes provision about the scrutiny by Parliament and the
devolved legislatures of regulations under this Act and contains other general
provision about such regulations) has effect.

22 Consequential and transitional provision

(1) 25A Minister of the Crown may by regulations make such provision as is
necessary in consequence of this Act.

(2) The power to make regulations under subsection (1) may (among other things)
be exercised by modifying any provision made by or under an enactment.

(3) In subsection (2) “enactment” does not include primary legislation passed or
30made after the end of the Session in which this Act is passed.

(4) No regulations may be made under subsection (1) after the end of the period
of 10 years beginning with exit day.

(5) Parts 1 and 2 of Schedule 8 (which contain consequential provision) have effect.

(6) A Minister of the Crown may by regulations make such transitional, transitory
35or saving provision as is necessary in connection with the coming into force of
any provision of this Act (including its operation in connection with exit day).

European Union (Withdrawal) BillPage 22

(7) Parts 3 and 4 of Schedule 8 (which contain transitional, transitory and saving
provision) have effect.

(8) The enactments mentioned in Schedule 9 (which contains repeals not made
elsewhere in this Act) are repealed to the extent specified.

23 5Extent

(1) Subject to subsections (2) and (3), this Act extends to England and Wales,
Scotland and Northern Ireland.

(2) Any provision of this Act which amends or repeals an enactment has the same
extent as the enactment amended or repealed.

(3) 10Regulations under section 9(1) or 22 may make provision which extends to
Gibraltar—

(a) modifying any enactment which—

(i) extends to Gibraltar and relates to European Parliamentary
elections, or

(ii) 15extends to Gibraltar for any purpose which is connected with
Gibraltar forming part of an electoral region, under the
European Parliamentary Elections Act 2002, for the purposes of
such elections, or

(b) which is supplementary, incidental, consequential, transitional,
20transitory or saving provision in connection with a modification within
paragraph (a).

24 Commencement and short title

(1) The following provisions—

(a) sections 9 to 14 (including Schedule 2),

(b) 25paragraphs 4, 5, 21(2)(b), 48(b), 51(2)(c) and (d) and (4) of Schedule 3
(and section 15(8) and (12) so far as relating to those paragraphs),

(c) section 16 (including Schedule 4),

(d) sections 19 to 21 (including Schedules 6 and 7),

(e) section 22(1) to (4) and (6),

(f) 30paragraph 39(10), 41 and 42 of Schedule 8 (and section 22(7) so far as
relating to those paragraphs),

(g) section 23, and

(h) this section,

come into force on the day on which this Act is passed.

(2) 35In section 15—

(a) subsection (2) comes into force on the day on which this Act is passed
for the purposes of making regulations under section 30A of the
Scotland Act 1998,

(b) subsection (4) comes into force on that day for the purposes of making
40regulations under section 109A of the Government of Wales Act 2006,
and

(c) subsection (6) comes into force on that day for the purposes of making
regulations under section 6A of the Northern Ireland Act 1998.

(3) In Schedule 3—

European Union (Withdrawal) BillPage 23

(a) paragraph 1(b) comes into force on the day on which this Act is passed
for the purposes of making regulations under section 57(4) of the
Scotland Act 1998,

(b) paragraph 2 comes into force on that day for the purposes of making
5regulations under section 80(8) of the Government of Wales Act 2006,

(c) paragraph 3(b) comes into force on that day for the purposes of making
regulations under section 24(3) of the Northern Ireland Act 1998,

(d) paragraph 24(2) comes into force on that day for the purposes of
making regulations under section 30A of the Scotland Act 1998,

(e) 10paragraph 24(3) comes into force on that day for the purposes of
making regulations under section 57(4) of the Scotland Act 1998,

(f) paragraph 25 comes into force on that day for the purposes of making
regulations under section 30A or 57(4) of the Scotland Act 1998,

(g) paragraph 43 comes into force on that day for the purposes of making
15regulations under section 80(8) or 109A of the Government of Wales
Act 2006, and

(h) paragraphs 57 and 58 come into force on that day for the purposes of
making regulations under section 6A or 24(3) of the Northern Ireland
Act 1998;

20and section 15(7) and (12), so far as relating to each of those paragraphs, comes
into force on that day for the purposes of making the regulations mentioned
above in relation to that paragraph.

(4) The provisions of this Act, so far as they are not brought into force by
subsections (1) to (3), come into force on such day as a Minister of the Crown
25may by regulations appoint; and different days may be appointed for different
purposes.

(5) But none of the remaining provisions may come into force until it is a
negotiating objective of the Government to ensure that an international
agreement has been made which enables the United Kingdom to continue to
30participate in the European Economic Area after exit day.

(6) Regulations under this Act may not repeal or amend subsection (5).

(7) This Act may be cited as the European Union (Withdrawal) Act 2018.


European Union (Withdrawal) BillPage 24

SCHEDULES

Section 6(5)

SCHEDULE 1 Further provision about exceptions to savings and incorporation

Challenges to validity of retained EU law

1 (1) 5There is no right in domestic law on or after exit day to challenge any
retained EU law on the basis that, immediately before exit day, an EU
instrument was invalid.

(2) Sub-paragraph (1) does not apply so far as the European Court has decided
before exit day that the instrument is invalid.

10General principles of EU law

2 No general principle of EU law is part of domestic law on or after exit day if
it was not recognised as a general principle of EU law by the European Court
in a case decided before exit day (whether or not as an essential part of the
decision in the case).

15Rule in Francovich

3 There is no right in domestic law on or after exit day to damages in
accordance with the rule in Francovich.

Interpretation

4 (1) References in section 6 and this Schedule to the principle of the supremacy
20of EU law, the Charter of Fundamental Rights, any general principle of EU
law or the rule in Francovich are to be read as references to that principle,
Charter or rule so far as it would otherwise continue to be, or form part of,
domestic law on or after exit day in accordance with this Act.

(2) Accordingly (among other things) the references to the principle of the
25supremacy of EU law in section 6(2) and (3) do not include anything which
would bring into domestic law any modification of EU law which is adopted
or notified, comes into force or only applies on or after exit day.

European Union (Withdrawal) BillPage 25

Section 14

SCHEDULE 2 Corresponding powers involving devolved authorities

Part 1 Dealing with deficiencies arising from withdrawal

5Power to deal with deficiencies

1 (1) A devolved authority may by regulations make such provision as the
devolved authority considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

10arising from the withdrawal of the United Kingdom from the EU.

(2) A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate to prevent,
remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) 15any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

(3) Section 9(2) to (9) apply for the purposes of this Part as they apply for the
purposes of section 9 (including the references to the Minister in section 9(2)
and (3) (but not the reference to a Minister of the Crown in section 9(3)(b)
20being read as references to the devolved authority or (as the case may be) the
Minister acting jointly with the devolved authority and the references to
section 9(1) being read as references to sub-paragraph (1) or (2) above).

(4) Regulations under sub-paragraph (1) above are subject to paragraphs 2 to 7.

No power to make provision outside devolved competence

2 (1) 25No provision may be made by a devolved authority acting alone in
regulations under this Part unless the provision is within the devolved
competence of the devolved authority.

(2) See paragraphs 8 to 11 for the meaning of “devolved competence” for the
purposes of this Part.

30No power to modify retained direct EU legislation or confer certain functions

3 (1) No provision may be made by the Scottish Ministers acting alone in
regulations under this Part so far as the provision—

(a) modifies any retained direct EU legislation or anything which is
retained EU law by virtue of section 5 or confers functions which
35correspond to functions to make EU tertiary legislation, and

(b) would, when made, be in breach of—

(i) the restriction in section 30A(1) of the Scotland Act 1998 if the
provision were made in an Act of the Scottish Parliament, or

(ii) the restriction in section 57(4) of the Act of 1998 if section
4057(5)(b) of that Act so far as relating to this Schedule were
ignored.

European Union (Withdrawal) BillPage 26

(2) No provision may be made by the Welsh Ministers acting alone in
regulations under this Part so far as the provision—

(a) modifies any retained direct EU legislation or anything which is
retained EU law by virtue of section 5 or confers functions which
5correspond to functions to make EU tertiary legislation, and

(b) would, when made, be in breach of—

(i) the restriction in section 80(8) of the Government of Wales
Act 2006 if section 80(8A)(b) of that Act so far as relating to
this Schedule were ignored, or

(ii) 10the restriction in section 109A(1) of that Act if the provision
were made in an Act of the National Assembly for Wales.

(3) No provision may be made by a Northern Ireland department acting alone
in regulations under this Part so far as the provision—

(a) modifies any retained direct EU legislation or anything which is
15retained EU law by virtue of section 5 or confers functions which
correspond to functions to make EU tertiary legislation, and

(b) would, when made, be in breach of—

(i) the restriction in section 6A(1) of the Northern Ireland Act
1998 if the provision were made in an Act of the Northern
20Ireland Assembly, or

(ii) the restriction in section 24(3) of the Act of 1998 if section
24(4)(b) of that Act so far as relating to this Schedule were
ignored.

(4) No provision may be made by a devolved authority acting alone in
25regulations under this Part so far as, when made, the provision is
inconsistent with any modification (whether or not in force) which—

(a) is a modification of any retained direct EU legislation or anything
which is retained EU law by virtue of section 5,

(b) is made by this Act or a Minister of the Crown under this Act, and

(c) 30could not be made by the devolved authority by virtue of sub-
paragraph (1), (2) or (as the case may be) (3).

(5) For the purposes of sub-paragraphs (1)(b), (2)(b) and (3)(b), sections 30A and
57(4) to (15) of the Scotland Act 1998, sections 80(8) to (8L) and 109A of the
Government of Wales Act 2006 and sections 6A and 24(3) to (15) of the
35Northern Ireland Act 1998, and any regulations made under them and any
related provision, are to be assumed to be wholly in force so far as that is not
otherwise the case.

(6) References in this paragraph to section 80(8) of the Government of Wales Act
2006 are to be read as references to the new section 80(8) of that Act provided
40for by paragraph 2 of Schedule 3 to this Act.

Requirement for consultation in certain circumstances

4 No regulations may be made under this Part by a devolved authority acting
alone so far as the regulations—

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

(b) 45remove (whether wholly or partly) reciprocal arrangements of the
kind mentioned in section 9(2)(c) or (e),

unless the regulations are, to that extent, made after consulting with the
Secretary of State.


European Union (Withdrawal) BillPage 27

Requirement for consent where it would otherwise be required

5 (1) The consent of a Minister of the Crown is required before any provision is
made by the Welsh Ministers acting alone in regulations under this Part so
far as that provision, if contained in an Act of the National Assembly for
5Wales, would require the consent of a Minister of the Crown.

(2) The consent of the Secretary of State is required before any provision is made
by a Northern Ireland department acting alone in regulations under this Part
so far as that provision, if contained in an Act of the Northern Ireland
Assembly, would require the consent of the Secretary of State.

(3) 10Sub-paragraph (1) or (2) does not apply if—

(a) the provision could be contained in subordinate legislation made
otherwise than under this Act by the Welsh Ministers acting alone or
(as the case may be) a Northern Ireland devolved authority acting
alone, and

(b) 15no such consent would be required in that case.

(4) The consent of a Minister of the Crown is required before any provision is
made by a devolved authority acting alone in regulations under this Part so
far as that provision, if contained in—

(a) subordinate legislation made otherwise than under this Act by the
20devolved authority, or

(b) subordinate legislation not falling within paragraph (a) and made
otherwise than under this Act by (in the case of Scotland) the First
Minister or Lord Advocate acting alone or (in the case of Northern
Ireland) a Northern Ireland devolved authority acting alone,

25would require the consent of a Minister of the Crown.

(5) Sub-paragraph (4) does not apply if—

(a) the provision could be contained in—

(i) an Act of the Scottish Parliament, an Act of the National
Assembly for Wales or (as the case may be) an Act of the
30Northern Ireland Assembly, or

(ii) different subordinate legislation of the kind mentioned in
sub-paragraph (4)(a) or (b) and of a devolved authority
acting alone or (as the case may be) other person acting alone,
and

(b) 35no such consent would be required in that case.

Requirement for joint exercise where it would otherwise be required

6 (1) 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
40exercisable by—

(a) the Scottish Ministers acting jointly with a Minister of the Crown, or

(b) the First Minister or Lord Advocate acting jointly with a Minister of
the Crown,

unless the regulations are, to that extent, made jointly with the Minister of
45the Crown.

(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

European Union (Withdrawal) BillPage 28

power to make subordinate legislation otherwise than under this Act is
exercisable by the Welsh Ministers acting jointly with a Minister of the
Crown, unless the regulations are, to that extent, made jointly with the
Minister of the Crown.

(3) 5No 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) a Northern Ireland department acting jointly with a Minister of the
10Crown, or

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

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

(4) 15Sub-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
for 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
20Crown, or

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

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

(ii) 25the Welsh Ministers acting alone, or

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

Requirement for consultation where it would otherwise be required

7 (1) No regulations may be made under this Part by the Welsh Ministers acting
30alone, 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 the Minister of the Crown.

(2) No regulations may be made under this Part by the Scottish Ministers acting
35alone, 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 after consulting with a Minister of the Crown, unless the
regulations are, to that extent, made after consulting with the Minister of the
40Crown.

(3) No regulations may be made under this Part by the Welsh Ministers acting
alone, 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 after consulting with a Minister of
45the 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 acting alone, so far as they contain provision which relates to a

European Union (Withdrawal) BillPage 29

matter in respect of which a power to make subordinate legislation
otherwise than under this Act is exercisable by a Northern Ireland
department after consulting with a Minister of the Crown, unless the
regulations are, to that extent, made after consulting with the Minister of the
5Crown.

(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
Act of the Northern Ireland Assembly, and

(b) 10there 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
made otherwise than under this Act by—

(i) 15the 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, and

(b) 20there 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

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

(a) 25it 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) it meets the conditions in sub-paragraph (2).

(2) 30The 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
Advocate acting alone, or

(ii) 35makes 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-
matter of the subordinate legislation concerned,

(c) 40the 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
cannot, by virtue of paragraph 1, 4 or 5 of Schedule 4 to the Scotland
45Act 1998, be modified by an Act of the Scottish Parliament.

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