Chapter 4: Other separation issues and financial provision (Part 4)
65.Clause 18 inserts a new section 8B into the 2018 Act. This provides a wide power to implement Part 3 of the Withdrawal Agreement. This part of the Agreement concerns other separation issues—for example, how goods which enter the UK or EU market before the end of the implementation period are to be treated after this period. One aim of this part of the Agreement is to ensure an orderly transition—for example, to allow these goods to continue to circulate. There are 13 such separation issues covered in Part 3 of the Withdrawal Agreement. It aims to provide a technical basis for winding down ongoing processes and arrangements for cooperation in areas such as customs procedures, VAT and Excise Duty matters, intellectual property, police and judicial cooperation.
66.New section 8B(1) inserted through clause 18 provides that a minister may make regulations, subject to the appropriateness test, which is the general test in section 8 of the 2018 Act, to implement Part 3 of the Withdrawal Agreement and to supplement the effects of new section 7A (inserted by clause 5) together with a broad “sweeping up” power in relation to Part 3 (new section 8B(1)(c)). New section 8B(2) makes similar provision in relation to the EEA EFTA Agreement.
67.The powers in clause 18 are wide. New section 8B(3) is notable: “Regulations under this section may make any provision that could be made by an Act of Parliament.” The provision therefore enables the creation of tertiary legislation.
68.There are restrictions to the scope of these powers. Under new section 8B(5), they may not be used to:
“(a) impose or increase taxation or fees, (b) make retrospective provision, (c) create a relevant criminal offence, (d) establish a public authority, (e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or (f) amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998 (unless the regulations are made by virtue of paragraph 21(b) of schedule 7 to this Act or are amending or repealing any provision of those Acts which modifies another enactment).”
69.These powers permit some things to be done by negative procedure that could be done only by affirmative procedure under the 2018 Act.56 These include creating or widening the scope of a criminal offence and making provision relating to the fees charged by public bodies. As the DPRRC noted, the Government has “not sought to explain why matters requiring the affirmative procedure under the 2018 Act have now been relegated to the negative procedure under this Bill.”57 We agree with the recommendation of the DPRRC that the powers in clause 18 should be subject to a sifting mechanism equivalent to that in the 2018 Act.
70.Clause 19 inserts a new Part 1B into schedule 2 to the 2018 Act. This provides corresponding powers for devolved authorities to those in clause 18. It provides that these powers can be exercised by a minister. This is also a broad power: “Regulations under this Part may make any provision that could be made by an Act of Parliament.”58 In line with other schedule 2 powers, devolved authorities acting alone can make regulations only within devolved competence.59 As with clause 18, such powers should be subject to a sifting mechanism.
71.Clause 20 relates to financial provision. It allows for payments to be made to the EU for the purposes of complying with any Withdrawal Agreement obligations:
“Any sum that is required to be paid to the EU or an EU entity to meet any obligation that the United Kingdom has by virtue of the Withdrawal Agreement is to be charged on and paid out of the Consolidated Fund or, if the Treasury so decides, the National Loans Fund.”60
72.New section 1A(3)(c) of the 2018 Act, inserted by clause 1 of the Bill, removes section 2(3) of the ECA with its provision for payment of EU costs. This is superseded by clause 20.
73.Clause 20(2) provides that payments authorised under the standing service provision in subsection (1) will cease on 31 March 2021, “other than sums required to be paid in respect of the traditional own resources of the EU”. In the previous iteration of the Bill, clause 20 provided that a minister might by regulations amend this date. This power does not feature in the current Bill.
56 European Union (Withdrawal) Act 2018, schedule 7, para 1(1)
57 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal Agreement) Bill (1st Report, Session 2019–20, HL Paper 3), para 15
58 European Union (Withdrawal Agreement) Bill, clause 19, inserted para 11G(5)
59 Ibid., clause 19, inserted para 11H(1)
60 Ibid., clause 20(1)