European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 30

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

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

(2) The conditions are—

(a) the provision—

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

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

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

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

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

(e) the provision does not modify any enactment so far as the enactment
cannot, by virtue of paragraph 5, 6 or 7 of Schedule 7B to the
Government of Wales Act 2006, be modified by an Act of the
25National Assembly for Wales.

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

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

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

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

(b) the provision—

(i) 35amends or repeals Northern Ireland legislation, and

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

(c) 40the provision meets the conditions in sub-paragraph (2).

(2) The conditions are—

(a) the provision—

(i) amends or revokes subordinate legislation made before exit
day by a Northern Ireland devolved authority acting alone,
45or

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

(b) the subject-matter of the provision does not go beyond the subject-
50matter of the subordinate legislation concerned,

European Union (Withdrawal) BillPage 31

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

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

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

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

11 10References in paragraphs 8 to 10, in connection with the making of
regulations under this Part, to the subject-matter of any provision or
subordinate legislation are to be read as references to the subject-matter of
the provision or subordinate legislation when the regulations concerned are
made.

15Part 2 Implementing the withdrawal agreement

Power to implement withdrawal agreement

12 (1) A devolved authority may by regulations make such provision as the
devolved authority considers appropriate for the purposes of implementing
20the withdrawal agreement if the devolved authority considers that such
provision should be in force on or before exit day.

(2) A Minister of the Crown acting jointly with a devolved authority may by
regulations make such provision as they consider appropriate for the
purposes of implementing the withdrawal agreement if they consider that
25such provision should be in force on or before exit day.

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

(4) But regulations under this Part may not—

(a) impose or increase taxation or fees,

(b) 30make retrospective provision,

(c) create a relevant criminal offence,

(d) establish a public authority,

(e) modify this Act,

(f) modify any subordinate legislation made under this Act unless the
35regulations—

(i) are modifying any subordinate legislation made by the
devolved authority concerned, or

(ii) are made by a Minister of the Crown acting jointly with a
devolved authority, or

(g) 40amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it.

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

(6) Regulations under sub-paragraph (1) are also subject to paragraphs 13 to 16.

European Union (Withdrawal) BillPage 32

No power to make provision outside devolved competence

13 (1) No 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) 5See paragraphs 17 to 19 for the meaning of “devolved competence” for the
purposes of this Part.

No power to modify retained direct EU legislation etc.

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

(a) 10modifies any retained direct EU legislation or anything which is
retained 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 30A(1) of the Scotland Act 1998 if the
15provision were made in an Act of the Scottish Parliament, or

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

(2) No provision may be made by the Welsh Ministers acting alone in
20regulations 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
correspond to functions to make EU tertiary legislation, and

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

(i) 25the 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) the restriction in section 109A(1) of that Act if the provision
were made in an Act of the National Assembly for Wales.

(3) 30No 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
retained EU law by virtue of section 5 or confers functions which
correspond to functions to make EU tertiary legislation, and

(b) 35would, 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
Ireland Assembly, or

(ii) the restriction in section 24(3) of the Act of 1998 if section
4024(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
regulations under this Part so far as, when made, the provision is
inconsistent with any modification (whether or not in force) which—

(a) 45is 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

European Union (Withdrawal) BillPage 33

(c) could 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
5Government of Wales Act 2006 and sections 6A and 24(3) to (15) of the
Northern 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
102006 are to be read as references to the new section 80(8) of that Act provided
for by paragraph 2 of Schedule 3 to this Act.

Requirement for consultation in certain circumstances

15 (1) No regulations may be made under this Part by a devolved authority acting
alone, so far as the regulations make provision about any quota
15arrangements or are incompatible with any such arrangements, unless the
regulations are, to that extent, made after consulting with the Secretary of
State.

(2) In sub-paragraph (1) “quota arrangements” means any arrangements for, or
in connection with, the division of responsibility within the United
20Kingdom or an area including the United Kingdom for—

(a) an international obligation, or

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

where the obligation is to achieve a result defined by reference to a quantity
(whether expressed as an amount, proportion or ratio or otherwise) or (as
25the case may be) the benefit is so defined.

Certain requirements for consent, joint exercise or consultation

16 Paragraphs 5 to 7 apply for the purposes of this Part as they apply for the
purposes of Part 1.

Meaning of devolved competence: Part 2

17 30A provision is within the devolved competence of the Scottish Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament (ignoring
section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law
35and retained EU law), or

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

18 40A provision is within the devolved competence of the Welsh Ministers for
the purposes of this Part if—

(a) it would be within the legislative competence of the National
Assembly for Wales if it were contained in an Act of the Assembly
(ignoring section 108A(2)(e) of the Government of Wales Act 2006 so
45far as relating to EU law and retained EU law but including any

European Union (Withdrawal) BillPage 34

provision that could be made only with the consent of a Minister of
the Crown), or

(b) it is provision which could be made in other subordinate legislation
by the Welsh Ministers acting alone (ignoring section 80(8) of the
5Government of Wales Act 2006).

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

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

(i) 10would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998),
and

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

(b) the provision—

(i) 15amends or repeals Northern Ireland legislation, and

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

(c) 20the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority acting alone
(ignoring section 24(1)(b) and (3) of the Northern Ireland Act 1998).

Section 15(7), (8) and (12)

SCHEDULE 3 Further amendments of devolution legislation

25 Part 1 Corresponding provision in relation to executive competence

Scotland Act 1998

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

(a) in subsection (2) (no power for members of the Scottish Government
30to make subordinate legislation, or otherwise act, incompatibly with
EU law) omit “or with EU law”, and

(b) after subsection (3) insert—

(4) A member of the Scottish Government has no power to make,
confirm or approve any subordinate legislation so far as the
35legislation modifies retained EU law and the modification is
of a description specified in regulations made by a Minister
of the Crown.

(5) But subsection (4) does not apply—

(a) so far as the modification would be within the
40legislative competence of the Parliament if it were
included in an Act of the Scottish Parliament, or

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

European Union (Withdrawal) BillPage 35

(6) A Minister of the Crown must not lay for approval before
each House of the Parliament of the United Kingdom a draft
of a statutory instrument containing regulations under
subsection (4) unless—

(a) 5the 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 made such a decision.

(7) For the purposes of subsection (6) a consent decision is—

(a) 10a 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 draft, or

(c) a decision to agree a motion refusing to consent to the
15laying 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 subsequently makes another such
decision).

(8) 20A Minister of the Crown who is proposing to lay a draft as
mentioned in subsection (6) must—

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

(b) inform the Presiding Officer that a copy has been so
25provided.

(9) See also paragraph 6 of Schedule 7 (duty to make explanatory
statement about regulations under subsection (4) including a
duty to explain any decision to lay a draft without the consent
of the Parliament).

(10) 30No regulations may be made under subsection (4) after the
end of the period of two years beginning with exit day.

(11) Subsection (10) does not affect the continuation in force of
regulations made under subsection (4) at or before the end of
the period mentioned in subsection (10).

(12) 35Any regulations under subsection (4) 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
the making, confirming or approving of subordinate
legislation after the end of that period.

(13) 40Subsections (6) to (11) do not apply in relation to regulations
which only relate to a revocation of a specification.

(14) The restriction in subsection (4) is in addition to any
restriction in section 8 of the European Union (Withdrawal)
Act 2018 or elsewhere on the power of a member of the
45Scottish Government to make, confirm or approve any
subordinate legislation so far as the legislation modifies
retained EU law.

(15) In this section—

    European Union (Withdrawal) BillPage 36

  • “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,

and, in calculating that period, no account is to be taken of
5any time during which the Parliament is dissolved or during
which it is in recess for more than four days.”

Government of Wales Act 2006

2 In section 80 of the Government of Wales Act 2006 (EU law) for subsection
(8) (no power for the First Minister, the Counsel General or the Welsh
10Ministers to make, confirm or approve subordinate legislation, or otherwise
act, incompatibly with EU law etc.) substitute—

(8) The Welsh Ministers have no power to make, confirm or approve
any subordinate legislation so far as the legislation modifies retained
EU law and the modification is of a description specified in
15regulations made by a Minister of the Crown.

(8A) But subsection (8) does not apply—

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

(b) 20to the making of regulations under Schedule 2 or 4 to the
European Union (Withdrawal) Act 2018.

(8B) No regulations are to be made under subsection (8) unless a draft of
the statutory instrument containing them has been laid before, and
approved by a resolution of, each House of Parliament.

(8C) 25A Minister of the Crown must not lay a draft as mentioned in
subsection (8B) unless—

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

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

(8D) For the purposes of subsection (8C) 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
35the draft, 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 Assembly first makes a
decision falling within any of paragraphs (a) to (c) (whether or not it
40subsequently makes another such decision).

(8E) In subsection (8C)—

  • “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,

45and, 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.


European Union (Withdrawal) BillPage 37

(8F) A Minister of the Crown who is proposing to lay a draft as
mentioned in subsection (8B) must—

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

(b) inform the Presiding Officer that a copy has been so
5provided.

(8G) See also section 157ZA (duty to make explanatory statement about
regulations under subsection (8) including a duty to explain any
decision to lay a draft without the consent of the Assembly).

(8H) No regulations may be made under subsection (8) after the end of the
10period of two years beginning with exit day.

(8I) Subsection (8H) does not affect the continuation in force of
regulations made under subsection (8) at or before the end of the
period mentioned in subsection (8H).

(8J) Any regulations under subsection (8) which are in force at the end of
15the period of five years beginning with the time at which they came
into force are revoked in their application to the making, confirming
or approving of subordinate legislation after the end of that period.

(8K) Subsections (8C) to (8I) do not apply in relation to regulations which
only relate to a revocation of a specification.

(8L) 20The restriction in subsection (8) is in addition to any restriction in
section 8 of the European Union (Withdrawal) Act 2018 or elsewhere
on the power of the Welsh Ministers to make, confirm or approve
any subordinate legislation so far as the legislation modifies retained
EU law.”

25Northern Ireland Act 1998

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

(a) omit subsection (1)(b) (no power for the First Minister, the deputy
First Minister, a Northern Ireland Minister or a Northern Ireland
30department to make, confirm or approve subordinate legislation, or
otherwise act, incompatibly with EU law), and

(b) after subsection (2) insert—

(3) A Minister or Northern Ireland department has no power to
make, confirm or approve any subordinate legislation so far
35as the legislation modifies retained EU law and the
modification is of a description specified in regulations made
by a Minister of the Crown.

(4) But subsection (3) does not apply—

(a) so far as the modification would be within the
40legislative competence of the Assembly if it were
included in an Act of the Assembly, or

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

(5) A Minister of the Crown must not lay for approval before
45each House of the Parliament a draft of a statutory

European Union (Withdrawal) BillPage 38

instrument containing regulations under subsection (3)
unless—

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

(b) 5the 40 day period has ended without the Assembly
having made such a decision.

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

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

(b) 10a 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;

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

(7) A Minister of the Crown who is proposing to lay a draft as
mentioned in subsection (5) 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.

(8) See also section 96A (duty to make explanatory statement
25about regulations under subsection (3) including a duty to
explain any decision to lay a draft without the consent of the
Assembly).

(9) No regulations may be made under subsection (3) after the
end of the period of two years beginning with exit day.

(10) 30Subsection (9) does not affect the continuation in force of
regulations made under subsection (3) at or before the end of
the period mentioned in subsection (9).

(11) Any regulations under subsection (3) which are in force at the
end of the period of five years beginning with the time at
35which they came into force are revoked in their application to
the making, confirming or approving of subordinate
legislation after the end of that period.

(12) Subsections (5) to (10) do not apply in relation to regulations
which only relate to a revocation of a specification.

(13) 40Regulations under subsection (3) may include such
supplementary, incidental, consequential, transitional,
transitory or saving provision as the Minister of the Crown
making them considers appropriate.

(14) The restriction in subsection (3) is in addition to any
45restriction in section 8 of the European Union (Withdrawal)
Act 2018 or elsewhere on the power of a Minister or Northern
Ireland department to make, confirm or approve any

European Union (Withdrawal) BillPage 39

subordinate legislation so far as the legislation modifies
retained EU law.

(15) In this section—

  • “the relevant Northern Ireland department” means such
    5Northern Ireland department as the Minister of the
    Crown concerned considers appropriate;

  • “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 relevant Northern
    10Ireland department,

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.”

Part 2 15Reports in connection with retained EU law restrictions

Reports on progress towards removing retained EU law restrictions

4 (1) After the end of each reporting period, a Minister of the Crown must lay
before each House of Parliament a report which—

(a) contains details of any steps which have been taken in the reporting
20period by Her Majesty’s Government (whether or not in conjunction
with any of the appropriate authorities) towards implementing any
arrangements which are to replace any relevant powers or retained
EU law restrictions,

(b) explains how principles—

(i) 25agreed between Her Majesty’s Government and any of the
appropriate authorities, and

(ii) relating to implementing any arrangements which are to
replace any relevant powers or retained EU law restrictions,

have been taken into account during the reporting period,

(c) 30specifies any relevant regulations, or regulations under section 15(9),
which have been made in the reporting period,

(d) in relation to any retained EU law restriction which has effect at the
end of the reporting period, sets out the Minister’s assessment of the
progress which still needs to be made before it can be removed,

(e) 35in relation to any relevant power that has not been repealed before
the end of the reporting period, sets out the Minister’s assessment of
the progress which still needs to be made before it can be repealed,
and

(f) contains any other information relating to any relevant powers or
40retained EU law restrictions, or the arrangements which are to
replace them, that the Minister considers appropriate.

(2) The first reporting period is the period of three months beginning with the
day on which this Act is passed.

(3) Each successive period of three months after the first reporting period is a
45reporting period.