European Union (Withdrawal) Bill (HL Bill 102)

European Union (Withdrawal) BillPage 70

(9) A statement under sub-paragraph (2), (3), (4), (5), (6) or (8) must be made in
writing and be published in such manner as the Scottish Ministers consider
appropriate.

(10) In this paragraph “equalities legislation” means the Equality Act 2006, the
5Equality Act 2010 or any subordinate legislation made under either of those
Acts.

Further explanatory statements in certain sub-delegation cases

29 (1) This paragraph applies where—

(a) a statutory instrument containing regulations under section 9(1) or
1011 or paragraph 1 of Schedule 4 which create a relevant sub-
delegated power, or

(b) a 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
15statement explaining why it is appropriate to create a relevant sub-delegated
power.

(3) If the relevant Minister fails to make a statement required by sub-paragraph
(2) 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.

(4) 20A statement under sub-paragraph (2) or (3) must be made in writing and be
published in such manner as the Minister making it considers appropriate.

(5) Sub-paragraphs (10) and (11) of paragraph 27 apply for the purposes of this
paragraph as they apply for the purposes of that paragraph.

(6) For the purposes of this paragraph references to creating a relevant sub-
25delegated power include (among other things) references to—

(a) amending a power to legislate which is exercisable by statutory
instrument by a relevant UK authority so that it becomes a relevant
sub-delegated power, or

(b) providing for any function of an EU entity or public authority in a
30member State of making an instrument of a legislative character to be
exercisable instead as a relevant sub-delegated power by a public
authority in the United Kingdom.

(7) In this paragraph—

  • “the relevant Minister” means the Minister of the Crown who makes, or
    35is to make, the instrument;

  • “relevant sub-delegated power” means a power to legislate which—

    (a)

    is not exercisable by any of the following—

    (i)

    statutory instrument,

    (ii)

    Scottish statutory instrument, or

    (iii)

    40statutory rule, or

    (b)

    is so exercisable by a public authority other than a relevant
    UK authority;

  • “relevant UK authority” means a Minister of the Crown, a member of
    the Scottish Government, the Welsh Ministers, the First Minister for
    45Wales, the Counsel General to the Welsh Government or a Northern
    Ireland devolved authority.

European Union (Withdrawal) BillPage 71

30 (1) This paragraph applies where—

(a) a Scottish statutory instrument containing regulations under Part 1
or 2 of Schedule 2 or paragraph 1 of Schedule 4 which create a
relevant sub-delegated power, or

(b) 5a draft of such an instrument,

is to be laid before the Scottish Parliament.

(2) Before the instrument or draft is laid, the Scottish Ministers must make a
statement explaining why it is appropriate to create a relevant sub-delegated
power.

(3) 10If the Scottish Ministers fail to make a statement required by sub-paragraph
(2) before the instrument or draft is laid, the Scottish Ministers must make a
statement explaining why they have failed to do so.

(4) A statement under sub-paragraph (2) or (3) must be made in writing and be
published in such manner as the Scottish Ministers consider appropriate.

(5) 15For the purposes of this paragraph references to creating a relevant sub-
delegated power include (among other things) references to—

(a) amending a power to legislate which is exercisable by Scottish
statutory instrument by a member of the Scottish Government so
that it becomes a relevant sub-delegated power, or

(b) 20providing for any function of an EU entity or public authority in a
member State of making an instrument of a legislative character to be
exercisable instead as a relevant sub-delegated power by a public
authority in the United Kingdom.

(6) In this paragraph “relevant sub-delegated power” means a power to
25legislate which—

(a) is not exercisable by Scottish statutory instrument, or

(b) is so exercisable by a public authority other than a member of the
Scottish Government.

Annual reports in certain sub-delegation cases

31 (1) 30Each person by whom a relevant sub-delegated power is exercisable by
virtue of regulations made by a Minister of the Crown under section 9(1) or
11 or paragraph 1 of Schedule 4 must—

(a) if the power has been exercised during a relevant year, and

(b) as soon as practicable after the end of the year,

35prepare a report on how the power has been exercised during the year.

(2) The person must—

(a) lay the report before each House of Parliament, and

(b) once laid—

(i) provide a copy of it to a Minister of the Crown, and

(ii) 40publish it in such manner as the person considers
appropriate.

(3) In this paragraph—

  • “relevant sub-delegated power” has the same meaning as in paragraph
    29;

  • 45“relevant year” means—

European Union (Withdrawal) BillPage 72

  • (a)

    in the case of a person who prepares an annual report, the
    year by reference to which the report is prepared, and

    (b)

    in any other case, the calendar year.

32 (1) Each person by whom a relevant sub-delegated power is exercisable by
5virtue of regulations made by the Scottish Ministers by Scottish statutory
instrument under Part 1 or 2 of Schedule 2 or paragraph 1 of Schedule 4
must—

(a) if the power has been exercised during a relevant year, and

(b) as soon as practicable after the end of the year,

10prepare a report on how the power has been exercised during the year.

(2) The person must—

(a) lay the report before the Scottish Parliament, and

(b) once laid—

(i) send a copy of it to the Scottish Ministers, and

(ii) 15publish it in such manner as the person considers
appropriate.

(3) In this paragraph—

  • “relevant sub-delegated power” has the same meaning as in paragraph
    30;

  • 20“relevant year” means—

    (a)

    in the case of a person who prepares an annual report, the
    year by reference to which the report is prepared, and

    (b)

    in any other case, the calendar year.

Further explanatory statements in urgency cases

33 (1) 25This paragraph applies where a statutory instrument containing regulations
under this Act is to be made by virtue of paragraph 5(2) or 18(2).

(2) The Minister of the Crown who is to make the instrument must make a
statement in writing explaining the reasons for the Minister’s opinion that,
by reason of urgency, it is necessary to make the regulations without a draft
30of the instrument containing them being laid before, and approved by a
resolution of, each House of Parliament.

(3) A statement under sub-paragraph (2) must be published before, or at the
same time as, the instrument as made is laid before each House of
Parliament.

(4) 35If the Minister—

(a) fails to make the statement required by sub-paragraph (2) before the
instrument is made, or

(b) fails to publish it as required by sub-paragraph (3),

a Minister of the Crown must make a statement explaining the failure.

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

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

European Union (Withdrawal) BillPage 73

34 (1) This paragraph applies where regulations are to be made by the Scottish
Ministers under this Act by virtue of paragraph 6(2) (whether or not as
applied by paragraph 18(7)).

(2) The Scottish Ministers must make a statement in writing explaining the
5reasons for the Scottish Ministers’ opinion that, by reason of urgency, it is
necessary to make the regulations without them being subject to the
affirmative procedure.

(3) A statement under sub-paragraph (2) must be published before, or at the
same time as, the regulations as made are laid before the Scottish Parliament.

(4) 10If the Scottish Ministers—

(a) fail to make the statement required by sub-paragraph (2) before the
regulations are made, or

(b) fail to publish it as required by sub-paragraph (3),

they must make a statement explaining the failure.

(5) 15A statement under sub-paragraph (4) must be made in writing and be
published in such manner as the Scottish Ministers consider appropriate.

Hybrid instruments

35 If an instrument, or a draft of an instrument, containing regulations under
this Act would, apart from this paragraph, be treated as a hybrid instrument
20for the purposes of the standing orders of either House of Parliament, it is to
proceed in that House as if it were not a hybrid instrument.

Procedure on re-exercise of certain powers

36 (1) A power to make regulations which, under this Schedule, is capable of being
exercised subject to different procedures may (in spite of section 14 of the
25Interpretation Act 1978) be exercised, when revoking, amending or re-
enacting an instrument made under the power, subject to a different
procedure from the procedure to which the instrument was subject.

(2) For the purposes of sub-paragraph (1) in its application to regulations under
section 22(6) no procedure is also a procedure.

30Combinations of instruments

37 (1) Sub-paragraph (2) applies to a statutory instrument containing regulations
under this Act which is subject to a procedure before Parliament that
requires the approval of the instrument in draft before it is made or its
approval after it is made.

(2) 35The statutory instrument may also include regulations under this Act or
another enactment which are made by statutory instrument which is subject
to a procedure before Parliament that provides for the annulment of the
instrument after it has been made.

(3) Where regulations are included as mentioned in sub-paragraph (2), the
40procedure applicable to the statutory instrument is the procedure
mentioned in sub-paragraph (1) and not the procedure mentioned in sub-
paragraph (2).

European Union (Withdrawal) BillPage 74

(4) Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under this Act which is subject to a procedure before
the National Assembly for Wales as they apply in relation to a statutory
instrument containing regulations under this Act which is subject to a
5procedure before Parliament but as if the references to Parliament were
references to the National Assembly for Wales.

(5) Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
in relation to a statutory instrument but as if the references to Parliament
were references to the Northern Ireland Assembly.

(6) 10Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
containing regulations under this Act which is subject to a procedure before
the Scottish Parliament, the National Assembly for Wales or the Northern
Ireland Assembly as well as a procedure before Parliament as they apply to
a statutory instrument containing regulations under this Act which is subject
15to a procedure before Parliament but as if the references to Parliament were
references to Parliament and the Scottish Parliament, the National Assembly
for Wales or (as the case may be) the Northern Ireland Assembly.

(7) This paragraph does not prevent the inclusion of other regulations in a
statutory instrument or statutory rule which contains regulations under this
20Act.

Section 22(5) and (7)

SCHEDULE 8 Consequential, transitional, transitory and saving provision

Part 1 General consequential provision

25Existing ambulatory references to retained direct EU legislation

1 (1) Any reference which, immediately before exit day—

(a) exists in—

(i) any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
30provision of the EEA agreement which is to form part of
domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
paragraph (i) or (ii), and

(b) is a reference to (as it has effect from time to time) any EU regulation,
35EU decision, EU tertiary legislation or provision of the EEA
agreement which is to form part of domestic law by virtue of section
3,

is to be read, on or after exit day, as a reference to the EU regulation, EU
decision, EU tertiary legislation or provision of the EEA agreement as it
40forms part of domestic law by virtue of section 3 and, unless the contrary
intention appears, as modified by domestic law from time to time.


European Union (Withdrawal) BillPage 75

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) continues to be part of domestic law by virtue of section 2, and

(b) 5is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Other existing ambulatory references

2 (1) 10Any reference which—

(a) exists, immediately before exit day, in—

(i) any enactment,

(ii) any EU regulation, EU decision, EU tertiary legislation or
provision of the EEA agreement which is to form part of
15domestic law by virtue of section 3, or

(iii) any document relating to anything falling within sub-
paragraph (i) or (ii),

(b) is not a reference to which paragraph 1(1) applies, and

(c) is, immediately before exit day, a reference to (as it has effect from
20time to time) any of the EU Treaties, any EU instrument or any other
document of an EU entity,

is to be read, on or after exit day, as a reference to the EU Treaty, instrument
or document as it has effect immediately before exit day.

(2) Sub-paragraph (1) does not apply to any reference which forms part of a
25power to make, confirm or approve subordinate legislation so far as the
power to make the subordinate legislation—

(a) continues to be part of domestic law by virtue of section 2, and

(b) is subject to a procedure before Parliament, the Scottish Parliament,
the National Assembly for Wales or the Northern Ireland Assembly.

(3) 30Sub-paragraphs (1) and (2) are subject to any other provision made by or
under this Act or any other enactment.

Existing powers to make subordinate legislation etc.

3 (1) Any power to make, confirm or approve subordinate legislation which—

(a) was conferred before the day on which this Act is passed, and

(b) 35is capable of being exercised to amend or repeal (or, as the case may
be, result in the amendment or repeal of) an enactment contained in
primary legislation,

is to be read, so far as the context permits or requires, as being capable of
being exercised to modify (or, as the case may be, result in the modification
40of) any retained direct EU legislation or anything which is retained EU law
by virtue of section 5.

(2) But sub-paragraph (1) does not apply if the power to make, confirm or
approve subordinate legislation is only capable of being exercised to amend
or repeal (or, as the case may be, result in the amendment or repeal of) an
45enactment contained in Northern Ireland legislation which is an Order in
Council.

European Union (Withdrawal) BillPage 76

4 (1) Any subordinate legislation which—

(a) is, or is to be, made, confirmed or approved by virtue of paragraph
3, and

(b) amends or revokes any retained direct principal EU legislation,

5is to be subject to the same procedure (if any) before Parliament, the Scottish
Parliament, the National Assembly for Wales or the Northern Ireland
Assembly as would apply to that legislation if it were amending or repealing
an enactment contained in primary legislation.

(2) Any subordinate legislation which—

(a) 10is, or is to be, made, confirmed or approved by virtue of paragraph
3, and

(b) either—

(i) modifies (otherwise than as a connected modification and
otherwise than by way of amending or revoking it) any
15retained direct principal EU legislation, or

(ii) modifies (otherwise than as a connected modification)
anything which is retained EU law by virtue of section 5,

is to be subject to the same procedure (if any) before Parliament, the Scottish
Parliament, the National Assembly for Wales or the Northern Ireland
20Assembly as would apply to that legislation if it were amending or repealing
an enactment contained in primary legislation.

(3) Any subordinate legislation which—

(a) is, or is to be, made, confirmed or approved by virtue of paragraph
3, and

(b) 25amends or revokes any retained direct minor EU legislation,

is to be subject to the same procedure (if any) before Parliament, the Scottish
Parliament, the National Assembly for Wales or the Northern Ireland
Assembly as would apply to that legislation if it were amending or revoking
an enactment contained in subordinate legislation made under a different
30power.

(4) Any subordinate legislation which—

(a) is, or is to be, made, confirmed or approved by virtue of paragraph
3, and

(b) modifies (otherwise than as a connected modification and otherwise
35than by way of amending or revoking it) any retained direct minor
EU legislation,

is to be subject to the same procedure (if any) before Parliament, the Scottish
Parliament, the National Assembly for Wales or the Northern Ireland
Assembly as would apply to that legislation if it were amending or revoking
40an enactment contained in subordinate legislation made under a different
power.

(5) Any subordinate legislation which—

(a) is, or is to be, made, confirmed or approved by virtue of paragraph
3, and

(b) 45modifies as a connected modification any retained direct EU
legislation or anything which is retained EU law by virtue of section
5,

is to be subject to the same procedure (if any) before Parliament, the Scottish
Parliament, the National Assembly for Wales or the Northern Ireland
50Assembly as would apply to the modification to which it is connected.


European Union (Withdrawal) BillPage 77

(6) Any provision which may be made, confirmed or approved by virtue of
paragraph 3 may be included in the same instrument as any other provision
which may be so made, confirmed or approved.

(7) Where more than one procedure of a kind falling within sub-paragraph (8)
5would otherwise apply in the same legislature for an instrument falling
within sub-paragraph (6), the higher procedure is to apply in the legislature
concerned.

(8) The order of procedures is as follows (the highest first)—

(a) a procedure which requires a statement of urgency before the
10instrument is made and the approval of the instrument after it is
made to enable it to remain in force,

(b) a procedure which requires the approval of the instrument in draft
before it is made,

(c) a procedure not falling within paragraph (a) which requires the
15approval of the instrument after it is made to enable it to come into,
or remain in, force,

(d) a procedure which provides for the annulment of the instrument
after it is made,

(e) a procedure not falling within any of the above paragraphs which
20provides for the laying of the instrument after it is made,

(f) no procedure.

(9) The references in this paragraph to amending or repealing an enactment
contained in primary legislation or amending or revoking an enactment
contained in subordinate legislation do not include references to amending
25or repealing or (as the case may be) amending or revoking an enactment
contained in any Northern Ireland legislation which is an Order in Council.

(10) In this paragraph “connected modification” means a modification which is
supplementary, incidental, consequential, transitional or transitory, or a
saving, in connection with—

(a) 30another modification under the power of retained direct EU
legislation or anything which is retained EU law by virtue of section
5, or

(b) anything else done under the power.

5 (1) This paragraph applies to any power to make, confirm or approve
35subordinate legislation—

(a) which was conferred before the day on which this Act is passed, and

(b) is not capable of being exercised as mentioned in paragraph 3(1)(b)
or is only capable of being so exercised in relation to Northern
Ireland legislation which is an Order in Council.

(2) 40Any power to which this paragraph applies (other than a power to which
sub-paragraph (4) applies) is to be read—

(a) so far as is consistent with any retained direct principal EU
legislation or anything which is retained EU law by virtue of section
5, and

(b) 45so far as the context permits or requires,

as being capable of being exercised to modify (or, as the case may be, result
in the modification of) any retained direct minor EU legislation.


European Union (Withdrawal) BillPage 78

(3) Any power to which this paragraph applies (other than a power to which
sub-paragraph (4) applies) is to be read, so far as the context permits or
requires, as being capable of being exercised to modify (or, as the case may
be, result in the modification of)—

(a) 5any retained direct principal EU legislation, or

(b) anything which is retained EU law by virtue of section 5,

so far as the modification is supplementary, incidental or consequential in
connection with any modification of any retained direct minor EU
legislation by virtue of sub-paragraph (2).

(4) 10Any power to which this paragraph applies so far as it is a power to make,
confirm or approve transitional, transitory or saving provision is to be read,
so far as the context permits or requires, as being capable of being exercised
to modify (or, as the case may be, result in the modification of)—

(a) any retained direct EU legislation, or

(b) 15anything which is retained EU law by virtue of section 5.

6 Any subordinate legislation which is, or is to be, made, confirmed or
approved by virtue of paragraph 5(2), (3) or (4) is to be subject to the same
procedure (if any) before Parliament, the Scottish Parliament, the National
Assembly for Wales or the Northern Ireland Assembly as would apply to
20that legislation if it were doing anything else under the power.

7 Any power to make, confirm or approve subordinate legislation which,
immediately before exit day, is subject to an implied restriction that it is
exercisable only compatibly with EU law is to be read on or after exit day
without that restriction or any corresponding restriction in relation to
25compatibility with retained EU law.

8 (1) Paragraphs 3 to 7 and this paragraph—

(a) do not prevent the conferral of wider powers,

(b) do not apply so far as section 57(4) of the Scotland Act 1998, section
80(8) of the Government of Wales Act 2006 or section 24(3) of the
30Northern Ireland Act 1998 applies (or would apply when in force on
and after exit day), and

(c) are subject to any other provision made by or under this Act or any
other enactment.

(2) For the purposes of paragraphs 3 and 5—

(a) 35a power is conferred whether or not it is in force, and

(b) a power in retained direct EU legislation is not conferred before the
day on which this Act is passed.

(3) A power which, by virtue of paragraph 3 or 5 or any Act of Parliament
passed before, and in the same Session as, this Act, is capable of being
40exercised to modify any retained EU law is capable of being so exercised
before exit day so as to come into force on or after exit day.

Review provisions in existing subordinate legislation

9 (1) In carrying out a review of a provision of subordinate legislation on or after
exit day (whether under provision made in accordance with section 28 of the
45Small Business, Enterprise and Employment Act 2015 or otherwise), a
person is not required, by any pre-exit enactment, to have regard to how any

European Union (Withdrawal) BillPage 79

former EU obligation is implemented elsewhere than in the United
Kingdom.

(2) In this paragraph—

  • “former EU obligation” means an obligation by which the United
    5Kingdom is, as a result of the United Kingdom’s withdrawal from
    the EU, no longer bound at the time of the review,

  • “pre-exit enactment” means an Act passed, or subordinate legislation
    made, before exit day, and

  • “subordinate legislation” does not include an instrument made under
    10an Act of the Scottish Parliament, Northern Ireland legislation or a
    Measure or Act of the National Assembly for Wales.

Future powers to make subordinate legislation

10 (1) This paragraph applies to any power to make, confirm or approve
subordinate legislation which is conferred on or after the day on which this
15Act is passed.

(2) Any power to which this paragraph applies (other than a power to which
sub-paragraph (4) applies) may—

(a) so far as is consistent with any retained direct principal EU
legislation or anything which is retained EU law by virtue of section
205, and

(b) so far as applicable and unless the contrary intention appears,

be exercised to modify (or, as the case may be, result in the modification of)
any retained direct minor EU legislation.

(3) Any power to which this paragraph applies (other than a power to which
25sub-paragraph (4) applies) may, so far as applicable and unless the contrary
intention appears, be exercised to modify (or, as the case may be, result in
the modification of)—

(a) any retained direct principal EU legislation, or

(b) anything which is retained EU law by virtue of section 5,

30so far as the modification is supplementary, incidental or consequential in
connection with any modification of any retained direct minor EU
legislation by virtue of sub-paragraph (2).

(4) Any power to which this paragraph applies so far as it is a power to make,
confirm or approve transitional, transitory or saving provision may, so far
35as applicable and unless the contrary intention appears, be exercised to
modify (or, as the case may be, result in the modification of)—

(a) any retained direct EU legislation, or

(b) anything which is retained EU law by virtue of section 5.

11 (1) Sub-paragraph (2) applies to any power to make, confirm or approve
40subordinate legislation which—

(a) is conferred on or after the day on which this Act is passed, and

(b) is capable of being exercised to amend or revoke (or, as the case may
be, result in the amendment or revocation of) any retained direct
principal EU legislation.

(2) 45The power may, so far as applicable and unless the contrary intention
appears, be exercised—