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(3)The consent of a Minister of the Crown is required before any provision is
made by a Northern Ireland department acting alone in regulations under
section 5 so far as that provision, if contained in—

(a)subordinate legislation made otherwise than under this Act by the
5Northern Ireland department, or

(b)subordinate legislation not falling within paragraph (a) and made
otherwise than under this Act by a Northern Ireland devolved
authority acting alone,

would require the consent of a Minister of the Crown.

(4)10Sub-paragraph (3) does not apply if—

(a)the provision could be contained in—

(i)an Act of the Northern Ireland Assembly, or

(ii)different subordinate legislation of the kind mentioned in
sub-paragraph (3)(a) or (b) and of a Northern Ireland
15department acting alone or, as the case may be, a Northern
Ireland devolved authority acting alone, and

(b)no such consent would be required in that case.

Requirement for joint exercise where it would otherwise be required

6(1)No regulations may be made under section 5 by a Northern Ireland
20department, 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)25another 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.

(2)Sub-paragraph (1) does not apply if the provision could be contained in—

(a)30an Act of the Northern Ireland Assembly without the need for the
consent of a Minister of the Crown, or

(b)different subordinate legislation made otherwise than under this Act
by a Northern Ireland devolved authority acting alone.

Requirement for consultation where it would otherwise be required

7(1)35No regulations may be made under section 5 by a Northern Ireland
department acting alone, 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 Northern Ireland
department after consulting with a Minister of the Crown, unless the
40regulations are, to that extent, made after consulting with the Minister of the
Crown.

(2)Sub-paragraph (1) does not apply if—

(a)the provision could be contained in an Act of the Northern Ireland
Assembly, and

(b)45there 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.

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(3)Sub-paragraph (1) does not apply if—

(a)the provision could be contained in different subordinate legislation
made otherwise than under this Act by a Northern Ireland devolved
authority acting alone, and

(b)5there 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.

Interpretation

8In this Part of this Schedule—

  • “Northern Ireland devolved authority” means—

    (a)

    10the First Minister and deputy First Minister in Northern
    Ireland acting jointly,

    (b)

    a Northern Ireland Minister, or

    (c)

    a Northern Ireland department;

  • “subordinate legislation” means any instrument made under primary
    15legislation.

Part 3 Transitional provision

Transitional exception

9Section 24(1)(b) of the Northern Ireland Act 1998 (restriction on acting
20incompatibly with EU law) does not apply to the making of regulations
under section 5.

Section 5(9)

Schedule 3 Regulations under section 5

Part 1 25Statutory instruments

1Any power to make regulations under section 5

(a)so far as exercisable by the Secretary of State or the Treasury, or by a
Minister of the Crown acting jointly with a Northern Ireland
department, is exercisable by statutory instrument, and

(b)30so far as exercisable by a Northern Ireland department (other than
when 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).

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Part 2 Scrutiny of regulations under section 5

Scrutiny where sole exercise

2(1)A statutory instrument containing regulations of the Secretary of State or the
5Treasury under section 5 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 a Northern Ireland department under section 5 may not be
made unless a draft of the regulations has been laid before, and approved by
10a resolution of, the Northern Ireland Assembly.

(3)This paragraph does not apply to regulations to which paragraph 3 applies
(Minister of the Crown and a Northern Ireland department acting jointly).

Scrutiny where joint exercise

3Regulations under section 5 of a Minister of the Crown acting jointly with a
15Northern Ireland department may not be made unless—

(a)a draft of the statutory instrument containing those regulations has
been laid before, and approved by a resolution of, each House of
Parliament, and

(b)a draft of the regulations has been laid before, and approved by a
20resolution of, the Northern Ireland Assembly.

Combination of instruments

4(1)Sub-paragraph (2) applies to a statutory instrument containing regulations
under section 5 which is subject to a procedure before Parliament for the
approval of the instrument in draft before it is made.

(2)25The statutory instrument may also include regulations under another Act
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
30procedure applicable to the statutory instrument—

(a)is the procedure mentioned in sub-paragraph (1), and

(b)is not the procedure mentioned in sub-paragraph (2).

(4)Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
in relation to a statutory instrument but as if—

(a)35the references to Parliament were references to the Northern Ireland
Assembly, and

(b)the reference to another Act in sub-paragraph (2) included Northern
Ireland legislation.

(5)Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
40containing regulations under section 5 which is subject to a procedure before
the Northern Ireland Assembly as well as a procedure before Parliament as
they apply to a statutory instrument containing regulations under section 5
which is subject to a procedure before Parliament but as if the references to

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Parliament were references to Parliament and the Northern Ireland
Assembly.

(6)This paragraph does not prevent the inclusion of other regulations in a
statutory instrument or statutory rule which contains regulations under
5section 5 (and, accordingly, references in this Schedule to an instrument
containing regulations are to be read as references to an instrument
containing (whether alone or with other provision) regulations).