Trade Bill (HL Bill 127)
Trade BillPage 10
SCHEDULES
Section 7(3)
SCHEDULE 1 Restrictions on devolved authorities
No power to make provision outside devolved competence
1
(1)
5No provision may be made by a devolved authority under section 1(1) or
2(1) unless the provision is within the devolved competence of the devolved
authority.
(2) See paragraphs 7 to 9 for the meaning of “devolved competence”.
No power to modify retained direct EU legislation etc.
2
(1)
10No provision may be made by the Scottish Ministers under section 1(1) or
2(1) so far as the provision—
(a)
modifies any retained direct EU legislation or anything which is
retained EU law by virtue of section 4 of the European Union
(Withdrawal) Act 2018, and
(b) 15would, when made, be in breach of—
(i)
the restriction in section 30A(1) of the Scotland Act 1998 if the
provision were made in an Act of the Scottish Parliament, or
(ii)
the restriction in section 57(4) of the Scotland Act 1998 if
section 57(5)(c) of that Act were ignored.
(2)
20No provision may be made by the Welsh Ministers under section 1(1) or 2(1)
so far as the provision—
(a)
modifies any retained direct EU legislation or anything which is
retained EU law by virtue of section 4 of the European Union
(Withdrawal) Act 2018, and
(b) 25would, when made, be in breach of—
(i)
the restriction in section 80(8) of the Government of Wales
Act 2006 if section 80(8A)(c) of that Act were ignored, or
(ii)
the restriction in section 109A(1) of the Government of Wales
Act 2006 if the provision were made in an Act of the National
30Assembly for Wales.
(3)
No provision may be made by a Northern Ireland department under section
1(1) or 2(1) so far as the provision—
(a)
modifies any retained direct EU legislation or anything which is
retained EU law by virtue of section 4 of the European Union
35(Withdrawal) Act 2018, and
(b) would, when made, be in breach of—
Trade BillPage 11
(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 Northern Ireland Act
51998 if section 24(4)(c) of that Act were ignored.
(4)
No provision may be made by a devolved authority under section 1(1) or
2(1) so far as, when made, the provision is inconsistent with any
modification (whether or not in force) which—
(a)
is a modification of any retained direct EU legislation or anything
10which is retained EU law by virtue of section 4 of the European
Union (Withdrawal) Act 2018,
(b)
is made by the European Union (Withdrawal) Act 2018 or by a
Minister of the Crown under that Act, or by a Minister of the Crown
under this Act, and
(c)
15could 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), the following
provisions, 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—
(a) 20sections 30A and 57(4) to (15) of the Scotland Act 1998,
(b)
sections 80(8) to (8L) and 109A of the Government of Wales Act 2006,
and
(c) sections 6A and 24(3) to (15) of the Northern Ireland Act 1998.
(6)
References in this paragraph to section 80(8) of the Government of Wales Act
252006 are to be read as references to the new section 80(8) of that Act provided
for by paragraph 2 of Schedule 3 to the European Union (Withdrawal) Act
2018.
(7)
In this paragraph “domestic law” means the law of England and Wales,
Scotland or Northern Ireland.
30Requirement for consultation in certain circumstances
3
(1)
No regulations may be made by a devolved authority acting alone under
section 1(1) or 2(1) so far as the regulations are to come into force before exit
day, unless the regulations are, to that extent, made after consulting with a
Minister of the Crown.
(2)
35No regulations may be made by a devolved authority acting alone under
section 2(1) so far as the regulations make provision about any quota
arrangements or are incompatible with any such arrangements, unless the
regulations are, to that extent, made after consulting with a Minister of the
Crown.
(3)
40In sub-paragraph (2) “quota arrangements” means any arrangements for, or
in connection with, the division of responsibility within the United
Kingdom or an area including the United Kingdom for—
(a) an international obligation, or
(b) any right or other benefit arising from such an obligation,
45where 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
the case may be) the benefit is so defined.
Trade BillPage 12
Requirement for consent where it would otherwise be required
4
(1)
The consent of a Minister of the Crown is required before any provision is
made by the Welsh Ministers in regulations under section 1(1) or 2(1) so far
as that provision, if contained in an Act of the National Assembly for Wales,
5would require the consent of a Minister of the Crown.
(2)
The consent of the Secretary of State is required before any provision is made
by a Northern Ireland department in regulations under section 1(1) or 2(1)
so far as that provision, if contained in an Act of the Northern Ireland
Assembly, would require the consent of the Secretary of State.
(3) 10Sub-paragraph (1) or (2) does not apply if—
(a)
the provision could be contained in subordinate legislation made
otherwise than under this Act by the Welsh Ministers acting alone or
(as the case may be) a Northern Ireland devolved authority acting
alone, and
(b) 15no such consent would be required in that case.
(4)
The consent of a Minister of the Crown is required before any provision is
made by a devolved authority in regulations under section 1(1) or 2(1) so far
as that provision, if contained in—
(a)
subordinate legislation made otherwise than under this Act by the
20devolved authority, or
(b)
subordinate legislation not falling within paragraph (a) and made
otherwise than under this Act by (in the case of Scotland) the First
Minister or Lord Advocate acting alone or (in the case of Northern
Ireland) a Northern Ireland devolved authority acting alone,
25would require the consent of a Minister of the Crown.
(5) Sub-paragraph (4) does not apply if—
(a) the provision could be contained in—
(i)
an Act of the Scottish Parliament, an Act of the National
Assembly for Wales or (as the case may be) an Act of the
30Northern Ireland Assembly, or
(ii)
different subordinate legislation of the kind mentioned in
sub-paragraph (4)(a) or (b), and
(b)
the consent of a Minister of the Crown would not be required in that
case.
35Requirement for joint exercise where it would otherwise be required
5
(1)
No regulations may be made under section 1(1) or 2(1) by the Scottish
Ministers, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by—
(a) 40the Scottish Ministers acting jointly with a Minister of the Crown, or
(b)
the First Minister or Lord Advocate acting jointly with a Minister of
the Crown,
unless the regulations are, to that extent, made jointly with the Minister of
the Crown.
(2)
45No regulations may be made under section 1(1) or 2(1) by the Welsh
Ministers, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
Trade BillPage 13
under this Act is exercisable by the Welsh Ministers acting jointly with a
Minister of the Crown, unless the regulations are, to that extent, made jointly
with the Minister of the Crown.
(3)
No regulations may be made under section 1(1) or 2(1) by a Northern Ireland
5department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by—
(a)
a Northern Ireland department acting jointly with a Minister of the
Crown, or
(b)
10another Northern Ireland devolved authority acting jointly with a
Minister of the Crown,
unless the regulations are, to that extent, made jointly with the Minister of
the Crown.
(4)
Sub-paragraph (1), (2) or (3) does not apply if the provision could be
15contained in—
(a)
an Act of the Scottish Parliament, an Act of the National Assembly
for Wales or (as the case may be) an Act of the Northern Ireland
Assembly without the need for the consent of a Minister of the
Crown, or
(b)
20different subordinate legislation made otherwise than under this Act
by—
(i)
the Scottish Ministers, the First Minister or the Lord
Advocate acting alone,
(ii) the Welsh Ministers acting alone, or
(iii)
25(as the case may be), a Northern Ireland devolved authority
acting alone.
Requirement for consultation where it would otherwise be required
6
(1)
No regulations may be made under section 1(1) or 2(1) by the Welsh
Ministers, so far as they contain provision which, if contained in an Act of
30the National Assembly for Wales, would require consultation with a
Minister of the Crown, unless the regulations are, to that extent, made after
consulting with the Minister of the Crown.
(2)
No regulations may be made under section 1(1) or 2(1) by the Scottish
Ministers, so far as they contain provision which relates to a matter in
35respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by the Scottish Ministers, the First Minister or
the Lord Advocate after consulting with a Minister of the Crown, unless the
regulations are, to that extent, made after consulting with the Minister of the
Crown.
(3)
40No regulations may be made under section 1(1) or 2(1) by the Welsh
Ministers, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by the Welsh Ministers after consulting with a
Minister of the Crown, unless the regulations are, to that extent, made after
45consulting with the Minister of the Crown.
(4)
No regulations may be made under section 1(1) or 2(1) by a Northern Ireland
department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
Trade BillPage 14
under this Act is exercisable by a Northern Ireland department after
consulting with a Minister of the Crown, unless the regulations are, to that
extent, made after consulting with the Minister of the Crown.
(5) Sub-paragraph (2), (3) or (4) does not apply if—
(a)
5the provision could be contained in an Act of the Scottish Parliament,
an Act of the National Assembly for Wales or (as the case may be) an
Act of the Northern Ireland Assembly, and
(b)
there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.
(6) 10Sub-paragraph (2), (3) or (4) does not apply if—
(a)
the provision could be contained in different subordinate legislation
made otherwise than under this Act by—
(i)
the Scottish Ministers, the First Minister or the Lord
Advocate acting alone,
(ii) 15the Welsh Ministers acting alone, or
(iii)
(as the case may be), a Northern Ireland devolved authority
acting alone, and
(b)
there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.
20Meaning of devolved competence
7 A provision is within the devolved competence of the Scottish Ministers 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
25and 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
(ignoring section 57(2) of the Scotland Act 1998 so far as relating to
EU law and section 57(4) of that Act).
8 30A provision is within the devolved competence of the Welsh Ministers 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
far as relating to EU law and retained EU law but including any
35provision 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 (ignoring section 80(8) of the Government of
Wales Act 2006).
9
40A provision is within the devolved competence of a Northern Ireland
department if—
(a)
the provision, if it were contained in an Act of the Northern Ireland
Assembly—
(i)
would be within the legislative competence of the Assembly
45(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—
Trade BillPage 15
(i) amends 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
5Act 1998) and require the consent of the Secretary of State, or
(c)
the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority (ignoring
section 24(1)(b) and (3) of the Northern Ireland Act 1998).
Interpretation
10
10In this Schedule, a “Northern Ireland devolved authority” means the First
Minister and deputy First Minister in Northern Ireland acting jointly, a
Northern Ireland Minister or a Northern Ireland department.
Section 7(4)
SCHEDULE 2 Regulations under Part 1
15Part 1 Statutory instruments and statutory rules
1 (1) Any power to make regulations under Part 1 of 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
20statutory instrument,
(b)
so 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
25when acting jointly with a Minister of the Crown), is exercisable by
statutory 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 Part 1 of this Act by the Scottish Ministers, see
30also section 27 of the Interpretation and Legislative Reform (Scotland) Act
2010 (asp 10)2010 (asp 10) (Scottish statutory instruments).
Part 2 Scrutiny of regulations under section 1(1)
Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone
2
(1)
35A statutory instrument containing regulations of a Minister of the Crown
under section 1(1) is subject to annulment in pursuance of a resolution of
either House of Parliament.
(2)
Regulations of the Scottish Ministers under section 1(1) are subject to the
negative procedure (see section 28 of the Interpretation and Legislative
40Reform (Scotland) Act 2010).
Trade BillPage 16
(3)
A statutory instrument containing regulations of the Welsh Ministers under
section 1(1) is subject to annulment in pursuance of a resolution of the
National Assembly for Wales.
(4)
Regulations of a Northern Ireland department under section 1(1) are subject
5to 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 meaning of that Act.
(5) This paragraph does not apply to regulations to which paragraph 3 applies.
Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly
3
(1)
10This paragraph applies to regulations of a Minister of the Crown acting
jointly with a devolved authority under section 1(1).
(2)
The procedure provided for by sub-paragraph (3) 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
15regulations concerned.
(3)
A statutory instrument containing regulations to which this paragraph
applies is subject to annulment in pursuance of a resolution of either House
of Parliament.
(4)
Regulations to which this paragraph applies which are made jointly with the
20Scottish Ministers are subject to the negative procedure.
(5)
Sections 28(2), (3) and (8) and 31 of the Interpretation and Legislative Reform
(Scotland) Act 2010 (asp 10)2010 (asp 10) (negative procedure etc.) apply in relation to
regulations to which sub-paragraph (4) applies and which are subject to the
negative procedure as they apply in relation to devolved subordinate
25legislation (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).
(6)
Section 32 of the Interpretation and Legislative Reform (Scotland) Act 2010
(laying) applies in relation to the laying before the Scottish Parliament of a
30statutory instrument containing regulations to which sub-paragraph (4)
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).
(7)
A statutory instrument containing regulations to which this paragraph
applies which are made jointly with the Welsh Ministers is subject to
35annulment in pursuance of a resolution of the National Assembly for Wales.
(8)
Regulations to which this paragraph applies which are made jointly with a
Northern Ireland department are 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 meaning of that Act.
(9) 40If in accordance with this paragraph—
(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
annulled,
45nothing 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.
Trade BillPage 17
(10) In sub-paragraph (9) “relevant devolved legislature” means—
(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
5National Assembly for Wales, and
(c)
in the case of regulations made jointly with a Northern Ireland
department, the Northern Ireland Assembly.
(11)
Sub-paragraph (9) does not affect the validity of anything previously done
under the instrument or prevent the making of a new instrument.
(12)
10Sub-paragraphs (9) and (10) apply in place of provision made by any other
enactment about the effect of such a resolution.
(13)
In this paragraph, “enactment” includes an enactment contained in, or in an
instrument made under—
(a) an Act of the Scottish Parliament,
(b) 15a Measure or Act of the National Assembly for Wales, or
(c) Northern Ireland legislation.
Part 3 Scrutiny of regulations under section 2(1)
Scrutiny of regulations made by Minister of the Crown or devolved authority acting alone
4
(1)
20A statutory instrument containing regulations of a Minister of the Crown
under section 2(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)
Regulations of the Scottish Ministers under section 2(1) are subject to the
affirmative procedure (see section 29 of the Interpretation and Legislative
25Reform (Scotland) Act 2010 (asp 10)).
(3)
A statutory instrument containing regulations of the Welsh Ministers under
section 2(1) 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.
(4)
Regulations of a Northern Ireland department under section 2(1) may not be
30made unless a draft of the regulations has been laid before, and approved by
a resolution of, the Northern Ireland Assembly.
(5) This paragraph does not apply to regulations to which paragraph 5 applies.
Scrutiny of regulations made by Minister of the Crown and devolved authority acting jointly
5
(1)
This paragraph applies to regulations of a Minister of the Crown acting
35jointly with a devolved authority under section 2(1).
(2)
The procedure provided for by sub-paragraph (3) 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
regulations concerned.
(3)
40A statutory instrument which contains regulations to which this paragraph
applies may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.
Trade BillPage 18
(4)
Regulations to which this paragraph applies which are made jointly with the
Scottish Ministers are subject to the affirmative procedure.
(5)
Section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010
(asp 10) (affirmative procedure) applies in relation to regulations to which
5sub-paragraph (4) applies as it applies in relation to devolved subordinate
legislation (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).
(6)
Section 32 of the Interpretation and Legislative Reform (Scotland) Act 2010
10(laying) applies in relation to the laying before the Scottish Parliament of a
statutory instrument containing regulations to which sub-paragraph (4)
applies as it applies in relation to the laying before the Scottish Parliament of
a Scottish statutory instrument (within the meaning of Part 2 of that Act).
(7)
A statutory instrument containing regulations to which this paragraph
15applies which are made jointly with the Welsh Ministers 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.
(8)
Regulations to which this paragraph applies which are made jointly with a
Northern Ireland department may not be made unless a draft of the
20regulations has been laid before, and approved by a resolution of, the
Northern Ireland Assembly.
Part 4 Scrutiny of regulations under section 2(7)(b)
6
A statutory instrument containing regulations of the Secretary of State under
25section 2(7)(b) may not be made unless a draft of the instrument has been
laid before, and approved by a resolution of, each House of Parliament.
Section 7(5)
SCHEDULE 3 Exceptions to restrictions in the devolution settlements
Scotland Act 1998
1
30In section 57 of the Scotland Act 1998 (EU law and Convention rights) in
subsection (5) (as inserted by paragraph 1 of Schedule 3 to the European
Union (Withdrawal) Act 2018), omit the “or” at the end of paragraph (a) and,
at the end of paragraph (b), insert— “, or
“(c)
to the making of regulations under section 1(1) or 2(1) of the
35Trade Act 2018.”
Government of Wales Act 2006
2
In section 80 of the Government of Wales Act 2006 (EU law) in subsection
(8A) (as inserted by paragraph 2 of Schedule 3 to the European Union
(Withdrawal) Act 2018), omit the “or” at the end of paragraph (a) and, at the
Trade BillPage 19
end of paragraph (b), insert— “, or
“(c)
to the making of regulations under section 1(1) or 2(1) of the
Trade Act 2018.”
Northern Ireland Act 1998
3
5In section 24 of the Northern Ireland Act 1998 (EU law, Convention rights
etc.) in subsection (4) (as inserted by paragraph 3 of Schedule 3 to the
European Union (Withdrawal) Act 2018), omit the “or” at the end of
paragraph (a) and, at the end of paragraph (b), insert— “, or
“(c)
to the making of regulations under section 1(1) or 2(1) of the
10Trade Act 2018.”
Transitional exception
4
Section 57(2) of the Scotland Act 1998, section 80(8) of the Government of
Wales Act 2006 and section 24(1)(b) of the Northern Ireland Act 1998, so far
as relating to EU law, do not apply to the making of regulations under
15section 1(1) or 2(1).
Section 9(2)
SCHEDULE 4 The Trade Remedies Authority
Status
1 (1) The TRA is not to be regarded—
(a) 20as the servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(2) The TRA’s property is not to be regarded—
(a) as the property of the Crown, or
(b) as property held on behalf of the Crown.
25Membership
2 (1) The TRA is to consist of—
(a) a Chair appointed by the Secretary of State,
(b) other non-executive members appointed by the Secretary of State,
(c)
a chief executive appointed by the Chair with the approval of the
30Secretary of State or, if the first Chair has not been appointed, by the
Secretary of State, and
(d) other executive members appointed by the Chair.
(2) The total number of members must not exceed nine.
(3)
The Secretary of State must consult the Chair before appointing the other
35non-executive members.
(4)
The Secretary of State and the Chair must ensure, so far as practicable, that
the number of non-executive members is at all times greater than the
number of executive members.