Part 2: Implementing the withdrawal agreement
- Part 2 provides powers for devolved authorities to implement the withdrawal agreement.
- Paragraph 12 provides that the power to implement the withdrawal agreement can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. It sets out that the same restrictions on UK ministers’ power in section 9, other than the requirement for the prior enactment of primary legislation in order to use the power, also apply to devolved authorities’ power under this Part, along with an additional restriction preventing the power from modifying secondary legislation made under the Act (except where that legislation was made by the devolved authority or the power is being exercised jointly with a minister of the Crown).
- Paragraph 13 provides that the power to implement the withdrawal agreement cannot be used outside of devolved competence, as defined in paragraphs 17 to 19 of this Schedule, where exercised by devolved authorities acting alone.
- Sub-paragraph (1) of paragraph 14 provides that, in areas specified in regulations under the new powers to limit Scottish legislative or executive competence in section 12 of and Schedule 3 to this Act, the Scottish Ministers, acting alone, cannot use the power to implement the Withdrawal Agreement to amend direct retained EU legislation, amend retained EU law under section 4, or confer functions that correspond to functions to make EU tertiary legislation.
- Sub-paragraph (2) and (3) make corresponding provision for the Welsh Ministers and Northern Ireland departments respectively.
- Sub-paragraph (4) prohibits the devolved authorities, where acting alone, from using the withdrawal agreement power in ways that would create inconsistencies with any modifications to retained direct EU legislation or retained EU law under section 4 which the UK Government has made under the Act, that could not have been made by the devolved authority by virtue of the restrictions in sub-paragraphs (1) to (3).
- Paragraph 15 sets out the requirement for the devolved authorities to consult the UK Government prior to using the power to make certain provision relating to a quota.
- Paragraph 16 applies the rules set out in paragraphs 5 to 7 of Schedule 2 to the use of the withdrawal agreement power so that, where a devolved authority would normally only be able to make a particular provision in legislation with the UK Government’s consent, after consulting with the UK Government or jointly with the UK Government, the devolved authority will still have to obtain consent, consult or make such legislation jointly (as applicable) when exercising the withdrawal agreement power to make such a provision.
- Paragraphs 17 to 19 define devolved competence for the purposes of exercising the power.
- Paragraph 17 provides that something is within the devolved competence of the Scottish Ministers for the purposes of this power if it is either within the legislative competence of the Scottish Parliament (if the EU law restriction on legislative competence were disapplied) or is otherwise an area in which the Scottish Ministers could have made the relevant provision by secondary legislation (if there were not a general restriction on making secondary legislation incompatible with EU law). The disapplication of the EU law restrictions for the purposes of defining the Scottish Ministers’ ability to use this power is necessary to enable the Scottish Ministers to make all necessary changes under this power in devolved areas. This is because any changes needed under this power are likely to involve a change that would be incompatible with EU law prior to exit.
- Paragraph 18 makes the same provision for the devolved competence of the Welsh Ministers as for the Scottish Ministers. Welsh ministers have competence if something is within the legislative competence of the National Assembly for Wales or is otherwise an area in which the Welsh Ministers could make the relevant provision by secondary legislation (disapplying the normal restrictions that would otherwise prevent the National Assembly for Wales or the Welsh Ministers from legislating incompatibly with EU law).
- Paragraph 19 makes provision for the competence of a Northern Ireland department. Sub-paragraph (a) deals with transferred matters, providing that Northern Ireland departments may make regulations in any areas which would be within the Assembly’s legislative competence and that would not require the consent of the Secretary of State. Sub-paragraph (b) deals with reserved matters, providing that where the Northern Ireland legislation has previously been made in relation to reserved matters that legislation can be amended using the international obligations power. Sub-paragraph (c) provides that Northern Ireland departments can also use the power in areas where they would otherwise have been able to make secondary legislation. As with Scotland and Wales, the normal restrictions on making legislation which is incompatible with EU law are disapplied for the purposes of defining devolved competence to use this power.
Power to implement withdrawal agreement
No power to make provision outside devolved competence
No power to modify retained direct EU legislation etc.
Requirement for consultation in certain circumstances
Certain requirements for consent, joint exercise or consultation
Meaning of devolved competence: Part 2
