Section 26 – References to EU instruments
136.Section 26 provides that where an Assembly Act or Welsh subordinate instrument to which Part 2 applies refers to an EU instrument, and that instrument was amended by another EU instrument before the Act received Royal Assent or the Welsh subordinate instrument was made, the reference to the EU instrument is to that instrument as amended. Unlike section 25, its effect is not “ambulatory”. In other words, if the EU instrument is amended after the Assembly Act receives Royal Assent or the Welsh subordinate instrument is made, the reference to the EU instrument is not then treated as a reference to the EU instrument as amended.
137.“EU instrument” is defined in Schedule 1, and means any instrument issued by any institution of the European Union, but from exit day onwards it excludes any retained direct EU legislation. EU instruments that become retained direct EU legislation on exit day under the European Union (Withdrawal) Act 2018 are instead treated from that point onwards as “enactments” (and references to them are therefore to be interpreted in accordance with section 25 rather than section 26).
138.Therefore, if Part 2 of this Act comes fully into force after exit day, section 26 will apply only where an Assembly Act or Welsh subordinate instrument refers to a specific EU instrument as it forms part of EU law, and not where an Act or instrument refers to any direct EU legislation as it has been retained in domestic law. (If it refers to retained direct EU legislation, section 25 will apply instead.)
139.If Part 2 comes into force before exit day, the position will be more complicated.
In an Act or instrument enacted before exit day, references to specific EU instruments will initially be interpreted in accordance with section 26. But from exit day, they will instead be governed by regulation 2 of the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019. As a result, certain references to instruments that are retained in domestic law will become references to those instruments as they form part of domestic law.
In an Act or instrument enacted on or after exit day, a reference to a specific piece of EU legislation will be subject to section 26 if it refers to the legislation as it forms part of EU law, and to section 25 if it refers to the legislation as it forms part of domestic law (which will be the default position by virtue of section 24).
140.For the purposes of the Act, an EU directive will only ever be an “EU instrument”, whether before or after exit day, because directives are not direct EU legislation and are not retained in domestic law. However, most EU regulations and decisions will be “EU instruments” before exit day, but will also be “enactments” on and after exit day because they become retained direct EU legislation.
141.Section 26 is equivalent to section 20A of the 1978 Act. It has effect except to the extent that express provision is made to the contrary or the context requires otherwise. Accordingly, it does not prevent an Assembly Act or Welsh subordinate instrument from including an “ambulatory” reference to an EU instrument, so long as it is clear that the reference is intended to include any amendments that may be made to the instrument from time to time.
142.Where an Assembly Act or Welsh subordinate instrument enacted before exit day contains an “ambulatory” reference to an EU instrument, the effect of that reference on or after exit day will be governed by Part 1 of Schedule 8 to the European Union (Withdrawal) Act 2018.
