European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 50

Minister of the Crown power in relation to devolved authorities

4 A Minister of the Crown may by regulations—

(a) prescribe circumstances in which, or functions in relation to which, a
devolved authority is to be regarded as being an appropriate
5authority for the purposes of paragraph 1;

(b) provide that a devolved authority that is regarded as being an
appropriate authority under regulations made under paragraph (a)
may only make regulations under paragraph 1, by virtue of being so
regarded, with the consent of a Minister of the Crown;

(c) 10prescribe circumstances in which, or functions in relation to which, a
devolved authority may, despite paragraph 3(2), make regulations
under paragraph 1 without the consent of a Minister of the Crown.

Time limit for making certain provision

5 (1) Subject to sub-paragraph (2), no regulations may be made under paragraph
151 after the end of the period of two years beginning with exit day.

(2) After the end of that period, regulations may be made under paragraph 1 for
the purposes of—

(a) revoking any provision made under that paragraph,

(b) altering the amount of any of the fees or charges that are to be
20charged under any provision made under that paragraph,

(c) altering how any of the fees or charges that are to be charged under
any provision made under that paragraph are to be determined, or

(d) otherwise altering the fees or charges that may be charged in relation
to anything in respect of which fees or charges may be charged under
25any provision made under that paragraph.

(3) This paragraph does not affect the continuation in force of any regulations
made at or before the end of the period mentioned in sub-paragraph (1)
(including the exercise after the end of that period of any power conferred
by regulations made under that paragraph at or before the end of that
30period).

Relationship to other powers

6 This Part does not affect the powers under section 9 or 11 or Schedule 2, or
any other power exercisable apart from this Part, to require the payment of,
or to make other provision in relation to, fees or other charges.

35Part 2 Modifying pre-exit fees or charges

Power to modify pre-exit fees or charges

7 (1) Sub-paragraph (2) applies where any subordinate legislation contains
provision (“the charging provision”) for, or in connection with, the charging
40of fees or other charges that—

(a) was made under section 2(2) of the European Communities Act 1972,
section 56 of the Finance Act 1973 or this Part, and

(b) forms part of retained EU law.

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(2) Any appropriate authority may by regulations make provision (“the
proposed modification”) modifying the subordinate legislation for the
purposes of—

(a) revoking the charging provision,

(b) 5altering the amount of any of the fees or charges that are to be
charged,

(c) altering how any of the fees or charges are to be determined, or

(d) otherwise altering the fees or charges that may be charged in relation
to anything in respect of which fees or charges may be charged under
10the charging provision.

Meaning of “appropriate authority”

8 In this Part an “appropriate authority” means a Minister of the Crown, or
devolved authority, that could have made the proposed modification—

(a) under section 2(2) of the European Communities Act 1972
15immediately before the repeal of that section by section 1, or

(b) under section 56 of the Finance Act 1973 immediately before the
amendment of that section by paragraph 15 of Schedule 8.

Restriction on exercise of power

9 (1) Where the charging provision consists solely of 1972 Act provision,
20regulations under this Part may not impose or increase taxation.

(2) In sub-paragraph (1) “1972 Act provision” means—

(a) provision that is made under section 2(2) of the European
Communities Act 1972 and not under section 56 of the Finance Act
1973, including such provision as modified under this Part, or

(b) 25provision that is made under this Part and is incidental to, or
supplements or replaces, provision within paragraph (a).

Requirement for consent

10 If a Minister of the Crown—

(a) is an appropriate authority, and

(b) 30immediately before the amendment of section 56 of the Finance Act
1973 by paragraph 15 of Schedule 8 could only have made the
proposed modification under that section,

the Minister may only make that modification under this Part with the
consent of the Treasury.

35Relationship to other powers

11 This Part does not affect the powers under section 9 or 11 or Schedule 2, or
any other power exercisable apart from this Part, to require the payment of,
or to make other provision in relation to, fees or other charges.

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Section 17(1) and (2)

SCHEDULE 5 Publication and rules of evidence

Part 1 Publication of retained direct EU legislation etc.

5Copies that must or may be published

1 (1) The Queen’s Printer must make arrangements for the publication of—

(a) each relevant instrument that has been published before exit day by
an EU entity, and

(b) the relevant international agreements.

(2) 10In this paragraph—

  • “relevant instrument” means—

    (a)

    an EU regulation,

    (b)

    an EU decision, and

    (c)

    EU tertiary legislation; and

  • 15“relevant international agreements” means—

    (a)

    the Treaty on European Union,

    (b)

    the Treaty on the Functioning of the European Union,

    (c)

    the Euratom Treaty, and

    (d)

    the EEA agreement.

(3) 20The Queen’s Printer may make arrangements for the publication of—

(a) any decision of, or expression of opinion by, the European Court, or

(b) any other document published by an EU entity.

(4) The Queen’s Printer may make arrangements for the publication of anything
which the Queen’s Printer considers may be useful in connection with
25anything published under this paragraph.

(5) This paragraph does not require the publication of—

(a) anything repealed before exit day, or

(b) any modifications made on or after exit day.

Exceptions from duty to publish

2 (1) 30A Minister of the Crown may create an exception from the duty under
paragraph 1(1) in respect of a relevant instrument if satisfied that it has not
become (or will not become, on exit day) retained direct EU legislation.

(2) An exception is created by giving a direction to the Queen’s Printer
specifying the instrument or category of instruments that are excepted.

(3) 35A Minister of the Crown must publish any direction under this paragraph.

(4) In this paragraph—

  • “instrument” includes part of an instrument; and

  • “relevant instrument” has the meaning given by paragraph 1(2).

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Part 2 Rules of evidence

Questions as to meaning of EU law

3 (1) Where it is necessary, for the purpose of interpreting retained EU law in
5legal proceedings, to decide a question as to—

(a) the meaning or effect in EU law of any of the EU Treaties or any other
treaty relating to the EU, or

(b) the validity, meaning or effect in EU law of any EU instrument,

the question is to be treated for that purpose as a question of law.

(2) 10In this paragraph—

  • “interpreting retained EU law” means deciding any question as to the
    validity, meaning or effect of any retained EU law; and

  • “treaty” includes—

    (a)

    any international agreement, and

    (b)

    15any protocol or annex to a treaty or international agreement.

Power to make provision about judicial notice and admissibility

4 (1) A Minister of the Crown may by regulations—

(a) make provision enabling or requiring judicial notice to be taken of a
relevant matter, or

(b) 20provide for the admissibility in any legal proceedings of specified
evidence of—

(i) a relevant matter, or

(ii) instruments or documents issued by or in the custody of an
EU entity.

(2) 25Regulations under sub-paragraph (1)(b) may provide that evidence is
admissible only where specified conditions are met (for example, conditions
as to certification of documents).

(3) Regulations under this paragraph may modify any provision made by or
under an enactment.

(4) 30In sub-paragraph (3) “enactment” does not include primary legislation
passed or made after the end of the Session in which this Act is passed.

(5) For the purposes of this paragraph each of the following is a “relevant
matter”—

(a) retained EU law,

(b) 35EU law,

(c) the EEA agreement, and

(d) anything which is specified in the regulations and which relates to a
matter mentioned in paragraph (a), (b) or (c).

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Section 19(1)

SCHEDULE 6 Instruments which are exempt EU instruments

EU decisions

1 (1) An EU decision is “an exempt EU instrument” so far as it is, in accordance
5with a relevant Protocol, not applicable to the United Kingdom immediately
before exit day.

(2) If any decision under Title V or former Title V of the Treaty on European
Union is a decision within the meaning of Article 288 of the Treaty on the
Functioning of the European Union (and accordingly falls within the
10definition of “EU decision” in section 19(1)), it is “an exempt EU instrument”.

(3) In sub-paragraph (2), the reference to former Title V of the Treaty on
European Union is a reference to that Title as it had effect at any time before
the coming into force of the Treaty of Lisbon.

EU regulations

2 15An EU regulation is “an exempt EU instrument” so far as it is, in accordance
with a relevant Protocol, not applicable to the United Kingdom immediately
before exit day.

EU tertiary legislation

3 EU tertiary legislation is “an exempt EU instrument” so far as it is made
20under—

(a) an EU decision or EU regulation which is an exempt EU instrument,
or

(b) an EU directive so far as it is, in accordance with a relevant Protocol,
not applicable to the United Kingdom immediately before exit day.

25Interpretation

4 The following are “relevant Protocols” for the purposes of this Schedule—

(a) Protocol 15 to the Treaty on European Union and the Treaty on the
Functioning of the European Union (protocol on certain provisions
relating to the United Kingdom);

(b) 30Protocol 19 to the Treaty on European Union and the Treaty on the
Functioning of the European Union (protocol on the Schengen acquis
integrated into the framework of the European Union);

(c) the former Protocol integrating the Schengen acquis into the
framework of the European Union annexed, in accordance with the
35Treaty of Amsterdam, to the Treaty on European Union and the
Treaty establishing the European Community;

(d) Protocol 21 to the Treaty on European Union and the Treaty on the
Functioning of the European Union (protocol on the position of the
United Kingdom and Ireland in respect of the area of freedom,
40security and justice);

(e) the former Protocol on the position of the United Kingdom and
Ireland annexed, in accordance with the Treaty of Amsterdam, to the
Treaty on European Union and the Treaty establishing the European

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Community (protocol in respect of Title IV of Part 3 of the Treaty
establishing the European Community);

(f) Article 10 of Title VII of Protocol 36 to the Treaty on European Union
and the Treaty on the Functioning of the European Union
5(transitional provision with respect to acts of the Union in the field of
police co-operation and judicial co-operation in criminal matters
adopted before the coming into force of the Treaty of Lisbon).

Section 21

SCHEDULE 7 Regulations

10 Part 1 Scrutiny of powers to deal with deficiencies

Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone

1 (1) A statutory instrument containing regulations under section 9(1) which
contain provision falling within sub-paragraph (2) may not be made unless
15a draft of the instrument has been laid before, and approved by a resolution
of, each House of Parliament.

(2) Provision falls within this sub-paragraph if it—

(a) provides for any function of an EU entity or public authority in a
member State of making an instrument of a legislative character to be
20exercisable instead by a public authority in the United Kingdom,

(b) relates to a fee in respect of a function exercisable by a public
authority in the United Kingdom,

(c) creates, or widens the scope of, a criminal offence, or

(d) creates or amends a power to legislate.

(3) 25Any other statutory instrument containing regulations under section 9(1) is
(if a draft of the instrument has not been laid before, and approved by a
resolution of, each House of Parliament) subject to annulment in pursuance
of a resolution of either House of Parliament.

(4) See paragraph 3 for restrictions on the choice of procedure under sub-
30paragraph (3).

(5) A statutory instrument containing regulations under section 9(3)(b)
(including as applied by paragraph 1(3) of Schedule 2) may not be made
unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(6) 35Regulations under Part 1 of Schedule 2 of the Scottish Ministers which
contain provision falling within sub-paragraph (2) are subject to the
affirmative procedure (see section 29 of the Interpretation and Legislative
Reform (Scotland) Act 2010 (asp 10)2010 (asp 10)).

(7) Any other regulations under Part 1 of Schedule 2 of the Scottish Ministers
40are (if they have not been subject to the affirmative procedure) subject to the
negative procedure (see section 28 of the Interpretation and Legislative
Reform (Scotland) Act 2010).

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(8) A statutory instrument containing regulations under Part 1 of Schedule 2 of
the Welsh Ministers which contain provision falling within sub-paragraph
(2) may not be made unless a draft of the instrument has been laid before,
and approved by a resolution of, the National Assembly for Wales.

(9) 5Any other statutory instrument containing regulations under Part 1 of
Schedule 2 of the Welsh Ministers is (if a draft of the instrument has not been
laid before, and approved by a resolution of, the National Assembly for
Wales) subject to annulment in pursuance of a resolution of the Assembly.

(10) See paragraph 4 for restrictions on the choice of procedure under sub-
10paragraph (9).

(11) Regulations under Part 1 of Schedule 2 of a Northern Ireland department
which contain provision falling within sub-paragraph (2) may not be made
unless a draft of the regulations has been laid before, and approved by a
resolution of, the Northern Ireland Assembly.

(12) 15Any other regulations under Part 1 of Schedule 2 of a Northern Ireland
department are (if a draft of the regulations has not been laid before, and
approved by a resolution of, the Northern Ireland Assembly) subject to
negative resolution within the meaning of section 41(6) of the Interpretation
Act (Northern Ireland) 1954 as if they were a statutory instrument within the
20meaning of that Act.

(13) This paragraph—

(a) does not apply to regulations to which paragraph 2 applies, and

(b) is subject to paragraphs 5 to 8.

Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly

2 (1) 25This paragraph applies to regulations under Part 1 of Schedule 2 of a
Minister of the Crown acting jointly with a devolved authority.

(2) The procedure provided for by sub-paragraph (3) or (4) applies in relation to
regulations to which this paragraph applies as well as any other procedure
provided for by this paragraph which is applicable in relation to the
30regulations concerned.

(3) A statutory instrument containing regulations to which this paragraph
applies which contain provision falling within paragraph 1(2) may not be
made unless a draft of the instrument has been laid before, and approved by
a resolution of, each House of Parliament.

(4) 35Any other statutory instrument containing regulations to which this
paragraph applies is (if a draft of the instrument has not been laid before,
and approved by a resolution of, each House of Parliament) subject to
annulment in pursuance of a resolution of either House of Parliament.

(5) Regulations to which this paragraph applies which are made jointly with the
40Scottish Ministers and contain provision falling within paragraph 1(2) are
subject to the affirmative procedure.

(6) Any other regulations to which this paragraph applies which are made
jointly with the Scottish Ministers are (if they have not been subject to the
affirmative procedure) subject to the negative procedure.

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(7) Section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010
(asp 10) (affirmative procedure) applies in relation to regulations to which
sub-paragraph (5) or (6) applies and which are subject to the affirmative
procedure as it applies in relation to devolved subordinate legislation
5(within the meaning of Part 2 of that Act) which is subject to the affirmative
procedure (but as if references to a Scottish statutory instrument were
references to a statutory instrument).

(8) Sections 28(2), (3) and (8) and 31 of the Interpretation and Legislative Reform
(Scotland) Act 2010 (negative procedure etc.) apply in relation to regulations
10to which sub-paragraph (6) applies and which are subject to the negative
procedure as they apply in relation to devolved subordinate legislation
(within the meaning of Part 2 of that Act) which is subject to the negative
procedure (but as if references to a Scottish statutory instrument were
references to a statutory instrument).

(9) 15Section 32 of the Interpretation and Legislative Reform (Scotland) Act 2010
(laying) applies in relation to the laying before the Scottish Parliament of a
statutory instrument containing regulations to which sub-paragraph (5) or
(6) applies as it applies in relation to the laying before that Parliament of a
Scottish statutory instrument (within the meaning of Part 2 of that Act).

(10) 20A statutory instrument containing regulations to which this paragraph
applies which are made jointly with the Welsh Ministers and contain
provision falling within paragraph 1(2) may not be made unless a draft of
the instrument has been laid before, and approved by a resolution of, the
National Assembly for Wales.

(11) 25Any other statutory instrument containing regulations to which this
paragraph applies which are made jointly with the Welsh Ministers is (if a
draft of the instrument has not been laid before, and approved by a
resolution of, the National Assembly for Wales) subject to annulment in
pursuance of a resolution of the Assembly.

(12) 30Regulations to which this paragraph applies which are made jointly with a
Northern Ireland department and contain provision falling within
paragraph 1(2) may not be made unless a draft of the regulations has been
laid before, and approved by a resolution of, the Northern Ireland
Assembly.

(13) 35Any other regulations to which this paragraph applies which are made
jointly with a Northern Ireland department are (if a draft of the regulations
has not been laid before, and approved by a resolution of, the Northern
Ireland Assembly) subject to negative resolution within the meaning of
section 41(6) of the Interpretation Act (Northern Ireland) 1954 as if they were
40a statutory instrument within the meaning of that Act.

(14) If in accordance with sub-paragraph (4), (6), (11) or (13)

(a) either House of Parliament resolves that an address be presented to
Her Majesty praying that an instrument be annulled, or

(b) a relevant devolved legislature resolves that an instrument be
45annulled,

nothing further is to be done under the instrument after the date of the
resolution and Her Majesty may by Order in Council revoke the instrument.

(15) In sub-paragraph (14) “relevant devolved legislature” means—

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(a) in the case of regulations made jointly with the Scottish Ministers, the
Scottish Parliament,

(b) in the case of regulations made jointly with the Welsh Ministers, the
National Assembly for Wales, and

(c) 5in the case of regulations made jointly with a Northern Ireland
department, the Northern Ireland Assembly.

(16) Sub-paragraph (14) does not affect the validity of anything previously done
under the instrument or prevent the making of a new instrument.

(17) Sub-paragraphs (14) and (15) apply in place of provision made by any other
10enactment about the effect of such a resolution.

Parliamentary committees to sift regulations made under section 9, [8], 11 or 22

3 (1) This paragraph applies if a Minister of the Crown—

(a) proposes to make a statutory instrument, whether under this Act or
any other Act of Parliament, to which paragraph 1(3), 6(3), 10(3), or
1515 applies or which has the same purpose as an instrument to which
those paragraphs apply, and

(b) is of the opinion that the instrument should be subject to annulment
in pursuance of a resolution of either House of Parliament (“the
negative procedure”).

(2) 20Before making the instrument, the Minister must lay before both Houses of
Parliament a draft of the instrument together with a memorandum setting
out the reasons for the Minister’s opinion that the instrument should be
subject to the negative procedure.

(3) The negative procedure applies unless within the relevant period either
25House of Parliament requires the affirmative procedure to apply, in which
case the affirmative procedure applies.

(4) A House of Parliament is taken to have required the affirmative procedure
to apply within the relevant period if—

(a) a committee of the House charged with reporting on the instrument
30has recommended, within the period of 10 sitting days beginning
with the first sitting day after the day on which the draft instrument
was laid before the House, that the affirmative procedure should
apply, and

(b) that House has not by resolution rejected the recommendation
35within a period of 5 sitting days beginning with the first sitting day
after the day on which the recommendation is made, or

(c) irrespective of the committee reporting on the instrument, that
House has resolved, within the period of 15 sitting days beginning
with the first sitting day after the day on which the draft instrument
40was laid before the House, that the affirmative procedure should
apply to the instrument.

(5) For the purposes of this paragraph—

(a) where an instrument is subject to the affirmative procedure, it may
not be made unless the draft of the instrument laid under sub-
45paragraph (2) has been approved by a resolution of each House of
Parliament,

(b) “sitting day” means, in respect of either House, a day on which that
House sits.

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(6) Nothing in this paragraph prevents a Minister of the Crown from deciding,
at any time before a statutory instrument mentioned in sub-paragraph (1)(a)
is made, that another procedure should apply in relation to the instrument.

(7) Section 6(1) of the Statutory Instruments Act 1946 (alternative procedure for
5certain instruments laid in draft before Parliament) does not apply in
relation to any statutory instrument to which this paragraph applies.

Committee of the National Assembly for Wales to sift certain regulations involving Welsh
Ministers

4 (1) Sub-paragraph (2) applies if the Welsh Ministers are to make a statutory
10instrument to which paragraph 1(9) applies and are of the opinion that the
appropriate procedure for the instrument is for it to be subject to annulment
in pursuance of a resolution of the National Assembly for Wales.

(2) The Welsh Ministers may not make the instrument so that it is subject to that
procedure unless—

(a) 15condition 1 is met, and

(b) either condition 2 or 3 is met.

(3) Condition 1 is that the Welsh Ministers—

(a) have made a statement in writing to the effect that in their opinion
the instrument should be subject to annulment in pursuance of a
20resolution of the National Assembly for Wales, and

(b) have laid before the Assembly—

(i) a draft of the instrument, and

(ii) a memorandum setting out the statement and the reasons for
the Welsh Ministers’ opinion.

(4) 25Condition 2 is that a committee of the National Assembly for Wales charged
with doing so has made a recommendation as to the appropriate procedure
for the instrument.

(5) Condition 3 is that the period of 14 days beginning with the first day after
the day on which the draft instrument was laid before the National
30Assembly for Wales as mentioned in sub-paragraph (3) has ended without
any recommendation being made as mentioned in sub-paragraph (4).

(6) In calculating the period of 14 days, no account is to be taken of any time
during which the National Assembly for Wales is—

(a) dissolved, or

(b) 35in recess for more than four days.

(7) Nothing in this paragraph prevents the Welsh Ministers from deciding at
any time before a statutory instrument to which paragraph 1(9) applies is
made that another procedure should apply to the instrument (whether
under paragraph 1(9) or 7).

(8) 40Section 6(1) of the Statutory Instruments Act 1946 as applied by section 11A
of that Act (alternative procedure for certain instruments laid in draft before
the Assembly) does not apply in relation to any statutory instrument to
which this paragraph applies.

(9) The references in this paragraph to paragraph 1(9) do not include references
45to paragraph 1(9) as applied by paragraph 10(5) (for which see paragraph
17).