European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 60

Scrutiny procedure in certain urgent cases: Ministers of the Crown

5 (1) Sub-paragraph (2) applies to—

(a) a statutory instrument to which paragraph 1(1) applies, or

(b) a statutory instrument to which paragraph 1(3) applies which would
5not otherwise be made without a draft of the instrument being laid
before, and approved by a resolution of, each House of Parliament.

(2) The instrument may be made without a draft of the instrument being laid
before, and approved by a resolution of, each House of Parliament if it
contains a declaration that the Minister of the Crown concerned is of the
10opinion that, by reason of urgency, it is necessary to make the regulations
without a draft being so laid and approved.

(3) After an instrument is made in accordance with sub-paragraph (2), it must
be laid before each House of Parliament.

(4) Regulations contained in an instrument made in accordance with sub-
15paragraph (2) cease to have effect at the end of the period of 28 days
beginning with the day on which the instrument is made unless, during that
period, the instrument is approved by a resolution of each House of
Parliament.

(5) In calculating the period of 28 days, no account is to be taken of any time
20during which—

(a) Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) 25affect the validity of anything previously done under the
regulations, or

(b) prevent the making of new regulations.

(7) Sub-paragraph (8) applies to a statutory instrument to which paragraph 1(3)
applies where the Minister of the Crown who is to make the instrument is of
30the opinion that the appropriate procedure for the instrument is for it to be
subject to annulment in pursuance of a resolution of either House of
Parliament.

(8) Paragraph 3 does not apply in relation to the instrument if the instrument
contains a declaration that the Minister is of the opinion that, by reason of
35urgency, it is necessary to make the regulations without meeting the
requirements of that paragraph.

Scrutiny procedure in certain urgent cases: devolved authorities

6 (1) This paragraph applies to—

(a) regulations to which paragraph 1(6) applies, or

(b) 40regulations to which paragraph 1(7) applies which would not
otherwise be made without being subject to the affirmative
procedure.

(2) The regulations may be made without being subject to the affirmative
procedure if the regulations contain a declaration that the Scottish Ministers

European Union (Withdrawal) BillPage 61

are of the opinion that, by reason of urgency, it is necessary to make the
regulations without them being subject to that procedure.

(3) After regulations are made in accordance with sub-paragraph (2), they must
be laid before the Scottish Parliament.

(4) 5Regulations made in accordance with sub-paragraph (2) cease to have effect
at the end of the period of 28 days beginning with the day on which they are
made unless, during that period, the regulations are approved by resolution
of the Scottish Parliament.

(5) In calculating the period of 28 days, no account is to be taken of any time
10during which the Scottish Parliament is—

(a) dissolved, or

(b) in recess for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) 15affect the validity of anything previously done under the
regulations, or

(b) prevent the making of new regulations.

(7) The references in this paragraph to paragraph 1(6) or (7) do not include
references to paragraph 1(6) or (7) as applied by paragraph 10(5) (for which
20see paragraph 18(7)).

7 (1) Sub-paragraph (2) applies to—

(a) a statutory instrument to which paragraph 1(8) applies, or

(b) a statutory instrument to which paragraph 1(9) applies which would
not otherwise be made without a draft of the instrument being laid
25before, and approved by a resolution of, the National Assembly for
Wales.

(2) The instrument may be made without a draft of the instrument being laid
before, and approved by a resolution of, the National Assembly for Wales if
it contains a declaration that the Welsh Ministers are of the opinion that, by
30reason of urgency, it is necessary to make the regulations without a draft
being so laid and approved.

(3) After an instrument is made in accordance with sub-paragraph (2), it must
be laid before the National Assembly for Wales.

(4) Regulations contained in an instrument made in accordance with sub-
35paragraph (2) cease to have effect at the end of the period of 28 days
beginning with the day on which the instrument is made unless, during that
period, the instrument is approved by a resolution of the National Assembly
for Wales.

(5) In calculating the period of 28 days, no account is to be taken of any time
40during which the National Assembly for Wales is—

(a) dissolved, or

(b) in recess for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) 45affect the validity of anything previously done under the
regulations, or

European Union (Withdrawal) BillPage 62

(b) prevent the making of new regulations.

(7) Sub-paragraph (8) applies to a statutory instrument to which paragraph 1(9)
applies where the Welsh Ministers are of the opinion that the appropriate
procedure for the instrument is for it to be subject to annulment in
5pursuance of a resolution of the National Assembly for Wales.

(8) Paragraph 4 does not apply in relation to the instrument if the instrument
contains a declaration that the Welsh Ministers are of the opinion that, by
reason of urgency, it is necessary to make the regulations without meeting
the requirements of that paragraph.

(9) 10The references in this paragraph to paragraph 1(8) or (9) do not include
references to paragraph 1(8) or (9) as applied by paragraph 10(5) (for which
see paragraph 18(7)).

8 (1) This paragraph applies to—

(a) regulations to which paragraph 1(11) applies, or

(b) 15regulations to which paragraph 1(12) applies which would not
otherwise be made without a draft of the regulations being laid
before, and approved by a resolution of, the Northern Ireland
Assembly.

(2) The regulations may be made without a draft of the regulations being laid
20before, and approved by a resolution of, the Northern Ireland Assembly if
they contain a declaration that the Northern Ireland department concerned
is of the opinion that, by reason of urgency, it is necessary to make the
regulations without a draft being so laid and approved.

(3) After regulations are made in accordance with sub-paragraph (2), they must
25be laid before the Northern Ireland Assembly.

(4) Regulations made in accordance with sub-paragraph (2) cease to have effect
at the end of the period of 28 days beginning with the day on which they are
made unless, during that period, the regulations are approved by a
resolution of the Northern Ireland Assembly.

(5) 30In calculating the period of 28 days, no account is to be taken of any time
during which the Northern Ireland Assembly is—

(a) dissolved,

(b) in recess for more than four days, or

(c) adjourned for more than six days.

(6) 35If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) affect the validity of anything previously done under the
regulations, or

(b) prevent the making of new regulations.

(7) 40The references in this paragraph to paragraph 1(11) or (12) do not include
references to paragraph 1(11) or (12) as applied by paragraph 10(5) (for
which see paragraph 18(7)).

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Part 2 Scrutiny of other powers under Act

Power to enable challenges to validity of retained EU law

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

(2) This paragraph is subject to paragraph 18.

Power to implement withdrawal agreement

10 (1) A statutory instrument containing regulations under section 11 which
10contain 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, 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
15member State of making an instrument of a legislative character to be
exercisable 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) 20creates or amends a power to legislate.

(3) Any other statutory instrument containing regulations under section 11 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) 25See paragraph 13 for restrictions on the choice of procedure under sub-
paragraph (3).

(5) Paragraphs 1(6) to (13)(a) and 2 apply to regulations under Part 2 of
Schedule 2 as they apply to regulations under Part 1 of that Schedule except
that any reference to provision falling within paragraph 1(2) is to be read as
30a reference to any provision falling within sub-paragraph (2) above.

(6) This paragraph is subject to paragraph 18.

Power to repeal provisions relating to retained EU law restrictions

11 A statutory instrument containing regulations under section 15(9) may not
be made unless a draft of the instrument has been laid before, and approved
35by a resolution of, each House of Parliament.

Powers in connection with fees and charges

12 (1) A statutory instrument containing regulations of a Minister of the Crown
under Schedule 4 which contain provision which does not relate to altering
the amount of a fee or charge to reflect changes in the value of money may
40not be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.

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(2) Any other statutory instrument containing regulations under Schedule 4 of
a Minister of the Crown 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.

(3) 5Paragraphs 1(6) to (13)(a) and 2 apply to regulations under Schedule 4 as
they apply to regulations under Part 1 of Schedule 2 except that any
reference to provision falling within paragraph 1(2) is to be read as a
reference to any provision made under Schedule 4 which does not relate to
altering the amount of a fee or charge to reflect changes in the value of
10money.

(4) This paragraph is subject to paragraph 18.

Power to make provision about publication and rules of evidence

13 A statutory instrument containing regulations under paragraph 4 of
Schedule 5 may not be made unless a draft of the instrument has been laid
15before, and approved by a resolution of, each House of Parliament.

Power to appoint “exit day”

14 A statutory instrument containing regulations under section 19 which
appoint a day as exit day may not be made unless a draft of the instrument
has been laid before, and approved by a resolution of, each House of
20Parliament.

Power to make consequential provision

15 (1) A statutory instrument containing regulations under section 22(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
25of a resolution of either House of Parliament.

(2) See paragraph 13 for restrictions on the choice of procedure under sub-
paragraph (1).

Power to make transitional, transitory or saving provision

16 (1) Sub-paragraph (2) applies if a Minister of the Crown who is to make
30regulations under section 22(6) considers that—

(a) it is not appropriate for the statutory instrument containing them to
be subject to no parliamentary procedure, and

(b) it is appropriate for that statutory instrument to be subject to the
parliamentary procedure in sub-paragraph (2).

(2) 35The statutory instrument containing the regulations may not be made unless
a draft of the instrument has been laid before, and approved by a resolution
of, each House of Parliament.

(3) Sub-paragraph (4) applies if a Minister of the Crown who is to make
regulations under section 22(6) considers that—

(a) 40it is not appropriate for the statutory instrument containing them to
be subject to no parliamentary procedure, and

(b) it is appropriate for that statutory instrument to be subject to the
parliamentary procedure in sub-paragraph (4).

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(4) The statutory instrument containing the regulations is subject to annulment
in pursuance of a resolution of either House of Parliament.

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

17 5Paragraph 4 applies to regulations under Part 2 of Schedule 2 as it applies to
regulations under Part 1 of that Schedule but as if—

(a) the references to paragraph 1(9) were references to paragraph 1(9) as
applied by paragraph 10(5),

(b) the reference to paragraph 7 were a reference to that paragraph as
10applied by paragraph 18(7), and

(c) paragraph 4(9) were omitted.

Scrutiny procedure in certain urgent cases

18 (1) Sub-paragraph (2) applies to—

(a) a statutory instrument to which paragraph 9(1), 10(1) or 12(1)
15applies, or

(b) a statutory instrument to which paragraph 10(3), 12(2) or 15 applies
which would not otherwise be made without a draft of the
instrument being laid before, and approved by a resolution of, each
House of Parliament.

(2) 20The instrument may be made without a draft of the instrument being laid
before, and approved by a resolution of, each House of Parliament if it
contains a declaration that the Minister of the Crown concerned is of the
opinion that, by reason of urgency, it is necessary to make the regulations
without a draft being so laid and approved.

(3) 25After an instrument is made in accordance with sub-paragraph (2), it must
be laid before each House of Parliament.

(4) Regulations contained in an instrument made in accordance with sub-
paragraph (2) cease to have effect at the end of the period of 28 days
beginning with the day on which the instrument is made unless, during that
30period, the instrument is approved by a resolution of each House of
Parliament.

(5) In calculating the period of 28 days, no account is to be taken of any time
during which—

(a) Parliament is dissolved or prorogued, or

(b) 35either House of Parliament is adjourned for more than four days.

(6) If regulations cease to have effect as a result of sub-paragraph (4), that does
not—

(a) affect the validity of anything previously done under the
regulations, or

(b) 40prevent the making of new regulations.

(7) Paragraphs 6 to 8 apply to regulations under Part 2 of Schedule 2 as they
apply to regulations under Part 1 of that Schedule but as if—

(a) the references to paragraphs 1(6), (7), (8), (9), (10) or (11) were
references to those provisions as applied by paragraph 10(5),

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(b) the reference in paragraph 7(8) to paragraph 4 were a reference to
that paragraph as applied by paragraph 17, and

(c) paragraphs 6(7), 7(9) and 8(7) were omitted.

(8) Sub-paragraph (9) applies to a statutory instrument to which paragraph
510(3) or 15 applies where the Minister of the Crown who is to make the
instrument is of the opinion that the appropriate procedure for the
instrument is for it to be subject to annulment in pursuance of a resolution
of either House of Parliament.

(9) Paragraph 13 does not apply in relation to the instrument if the instrument
10contains a declaration that the Minister is of the opinion that, by reason of
urgency, it is necessary to make the regulations without meeting the
requirements of that paragraph.

Part 3 General provision about powers under Act

15Scope and nature of powers: general

19 (1) Any power to make regulations under this Act—

(a) so far as exercisable by a Minister of the Crown or by a Minister of
the Crown acting jointly with a devolved authority, is exercisable by
statutory instrument,

(b) 20so far as exercisable by the Welsh Ministers or by the Welsh Ministers
acting jointly with a Minister of the Crown, is exercisable by
statutory instrument, and

(c) so far as exercisable by a Northern Ireland department (other than
when acting jointly with a Minister of the Crown), is exercisable by
25statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979 (SI 1979/1573 (NI 12)) (and not by statutory
instrument).

(2) For regulations made under this Act by the Scottish Ministers, see also
section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010
30(asp 10) (Scottish statutory instruments).

20 Any power to make regulations under this Act—

(a) may be exercised so as to—

(i) modify retained EU law, or

(ii) make different provision for different cases or descriptions of
35case, different circumstances, different purposes or different
areas, and

(b) includes power to make supplementary, incidental, consequential,
transitional, transitory or saving provision (including provision re-
stating any retained EU law in a clearer or more accessible way).

21 40The fact that a power to make regulations is conferred by this Act does not
affect the extent of any other power to make regulations under this Act.

Scope of consequential and transitional powers

22 (1) The fact that anything continues to be, or forms part of, domestic law by
virtue of any provision of sections 2 to 7 or Schedule 1 does not prevent it

European Union (Withdrawal) BillPage 67

from being modified by regulations made under section 22(1) in
consequence of any other provision made by or under this Act.

(2) Accordingly, any retained EU law may, for example, be modified by
regulations made under section 22(1) in consequence of the repeal of any
5enactment contained in the European Communities Act 1972.

(3) The power to make regulations under section 22(6) includes the power to
make transitional, transitory or saving provision in connection with—

(a) the repeal of any enactment contained in the European Communities
Act 1972, or

(b) 10the withdrawal of the United Kingdom from the EU,

which is additional to that made by any provision of sections 2 to 7 or
Schedule 1 or alters its effect in particular cases or descriptions of case.

(4) The power to make regulations under section 22(1) includes the power to
make transitional, transitory or saving provision which—

(a) 15is in connection with any repeal or revocation made by any such
regulations of an enactment in consequence of—

(i) the repeal of any enactment contained in the European
Communities Act 1972, or

(ii) the withdrawal of the United Kingdom from the EU, and

(b) 20is additional to that made by any provision of sections 2 to 7 or
Schedule 1 or alters its effect in particular cases or descriptions of
case.

(5) Provision of the kind mentioned in sub-paragraph (3) or (4) may (among
other things) include further provision treating any provision of that kind as
25retained EU law for particular purposes or all purposes.

Anticipatory exercise of powers in relation to retained EU law

23 Any power to make regulations under this Act which modify retained direct
EU legislation, anything which is retained EU law by virtue of section 5 or
any other retained EU law is capable of being exercised before exit day so
30that the regulations come into force on or after exit day.

Scope of appointed day powers

24 Any power of a Minister of the Crown under this Act to appoint a day
includes a power to appoint a time on that day if the Minister considers it
appropriate to do so.

35Effect of certain provisions in Schedule 8 on scope of powers

25 The modifications made by Part 1 of Schedule 8 and paragraphs 16 to 20 and
29 to 33 of that Schedule do not prevent or otherwise limit the making of
different provision, in particular cases or descriptions of case, in regulations
under section 22(1) or in any other regulations under this Act.

40Disapplication of certain review provisions

26 Section 28 of the Small Business, Enterprise and Employment Act 2015 (duty
to review regulatory provisions in secondary legislation) does not apply in
relation to any power to make regulations conferred by this Act.

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Explanatory statements for certain powers: appropriateness, equalities etc.

27 (1) This paragraph applies where—

(a) a statutory instrument containing regulations under section 9(1), 11
or 22(1) or paragraph 1(2) or 12(2) of Schedule 2, or

(b) 5a draft of such an instrument,

is to be laid before each House of Parliament.

(2) Before the instrument or draft is laid, the relevant Minister must make a
statement to the effect that in the Minister’s opinion the instrument or draft
does no more than is appropriate.

(3) 10Before the instrument or draft is laid, the relevant Minister must make a
statement as to why, in the Minister’s opinion—

(a) there are good reasons for the instrument or draft, and

(b) the provision made by the instrument or draft is a reasonable course
of action.

(4) 15Before the instrument or draft is laid, the relevant Minister must make a
statement—

(a) as to whether the instrument or draft amends, repeals or revokes any
provision of equalities legislation, and

(b) if it does, explaining the effect of each such amendment, repeal or
20revocation.

(5) Before the instrument or draft is laid, the relevant Minister must make a
statement to the effect that, in relation to the instrument or draft, the Minister
has, so far as required to do so by equalities legislation, had due regard to
the need to eliminate discrimination, harassment, victimisation and any
25other conduct that is prohibited by or under the Equality Act 2010.

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

(a) the instrument or draft,

(b) its purpose,

(c) 30the law before exit day which is relevant to it, and

(d) its effect (if any) on retained EU law.

(7) Where an instrument or draft creates a criminal offence, the statement
required by sub-paragraph (3) must (among other things) include an
explanation of why, in the relevant Minister’s opinion, there are good
35reasons for creating the offence and for the penalty provided in respect of it.

(8) If the relevant Minister fails to make a statement required by sub-paragraph
(2), (3), (4), (5) or (6) before the instrument or draft is laid, a Minister of the
Crown must make a statement explaining why the relevant Minister has
failed to do so.

(9) 40A statement under sub-paragraph (2), (3), (4), (5), (6) or (8) must be made in
writing and be published in such manner as the Minister making it considers
appropriate.

(10) For the purposes of this paragraph, where an instrument or draft is laid
before each House of Parliament on different days, the earlier day is to be
45taken as the day on which it is laid before both Houses.

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

(12) 5In this paragraph—

  • “equalities legislation” means the Equality Act 2006, the Equality Act
    2010 or any subordinate legislation made under either of those Acts;

  • “the relevant Minister” means the Minister of the Crown who makes, or
    is to make, the instrument.

28 (1) 10 This paragraph applies where—

(a) a Scottish statutory instrument containing regulations under Part 1
or 2 of Schedule 2, or

(b) a draft of such an instrument,

is to be laid before the Scottish Parliament.

(2) 15Before the instrument or draft is laid, the Scottish Ministers must make a
statement to the effect that in the Scottish Ministers’ opinion the instrument
or draft does no more than is appropriate.

(3) Before the instrument or draft is laid, the Scottish Ministers must make a
statement as to why, in the Scottish Ministers’ opinion—

(a) 20there are good reasons for the instrument or draft, and

(b) the provision made by the instrument or draft is a reasonable course
of action.

(4) Before the instrument or draft is laid, the Scottish Ministers must make a
statement—

(a) 25as to whether the instrument or draft amends, repeals or revokes any
provision of equalities legislation, and

(b) if it does, explaining the effect of each such amendment, repeal or
revocation.

(5) Before the instrument or draft is laid, the Scottish Ministers must make a
30statement to the effect that, in relation to the instrument or draft, the Scottish
Ministers have, so far as required to do so by equalities legislation, had due
regard to the need to eliminate discrimination, harassment, victimisation
and any other conduct that is prohibited by or under the Equality Act 2010.

(6) Before the instrument or draft is laid, the Scottish Ministers must make a
35statement otherwise explaining—

(a) the instrument or draft,

(b) its purpose,

(c) the law before exit day which is relevant to it, and

(d) its effect (if any) on retained EU law.

(7) 40Where an instrument or draft creates a criminal offence, the statement
required by sub-paragraph (3) must (among other things) include an
explanation of why, in the Scottish Ministers’ opinion, there are good
reasons for creating the offence and for the penalty provided in respect of it.

(8) If the Scottish Ministers fail to make a statement required by sub-paragraph
45(2), (3), (4), (5) or (6) before the instrument or draft is laid, the Scottish
Ministers must make a statement explaining why they have failed to do so.