European Union (Withdrawal) Act 2018

Part 3: General provision about powers under Act

Scope and nature of powers: general

322. Paragraph 20 sets out how the powers to make regulations in the Act are exercisable by statutory instrument (where exercised by a Minister of the Crown, by the Welsh Ministers or by a Minister of the Crown acting jointly with a devolved authority) and by statutory rule (where the powers are exercised by a Northern Ireland department). As provided for by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010, regulations made by the Scottish Ministers acting alone will be made by Scottish statutory instrument.
323. Paragraph 21 applies to all powers in the Act. It provides that that all the powers in the Act can be used to modify retained EU law and can make provisions in different ways for different cases or descriptions of case, in different circumstances, areas or for different purposes and that they include the power to make supplementary etc provision and to restate retained EU law, even though this may change the status of the provisions for other purposes, such as amendability.
324. Paragraph 22 provides that powers in the Act may overlap without that overlap impacting on the scope of each of the powers.

Scope of consequential and transitional powers

325. Sub-paragraph (1) of paragraph 23 provides that the law preserved and converted by sections 2 to 6 may be modified by the power to make consequential provision.
326. Sub-paragraph (2) therefore clarifies that the consequential power in the Act can, for example, be used to modify retained EU law if the changes are consequential on repeal of the ECA.
327. Sub-paragraph (3) clarifies that the power to make transitional, transitory and savings provisions can be used to do things in connection with the repeal of the ECA and generally in connection with withdrawal of the UK from the EU. The power can be used for these purposes in a way which is additional to the changes made by the sections in the Act that deal with the preservation, conversion and interpretation of EU law, or to produce different effects for particular cases.
328. Sub-paragraph (4) clarifies that the consequential power can do things in connection with repeals made by the Act, or which are additional to the provisions covered in the sections of the Act that deal with the preservation, conversion and interpretation of EU law, including in a way that might alter their effect for particular cases. Provisions of this kind can be treated as retained EU law, as sub-paragraph (5) provides.

Anticipatory exercise of powers

329. Paragraph 24 allows for the anticipatory use of delegated powers in this Act in relation to retained EU law. This means that these powers can be exercised before exit day to amend retained EU law if they come into force on or after exit day.

Scope of appointed day powers

330. Paragraph 25 provides that a Minister of the Crown can specify the time of day when specifying a day under any power in the Act to appoint a day.

Effect of certain provisions in Schedule 8 on scope of powers

331. Paragraph 26 provides that the powers in the Act may be used to make different provision, in particular cases, from the changes made by Part 1 of Schedule 8 and amendments to the Interpretation Act 1978 made by paragraphs 18 to 22. For example, although the Act amends the definition of ‘enactment’ in the Interpretation Act so as to include retained direct EU legislation, the powers in the Act could, where appropriate, be used to amend references to ‘enactment’ in other legislation so as to exclude some or all retained direct EU legislation from the definition.

Disapplication of certain review provisions

332. Paragraph 27 disapplies the requirement in the Small Business, Enterprise and Employment Act 2015 to conduct and publish a post-implementation review for any secondary legislation made under any of the powers in the Act. Post-implementation reviews assess the impact of new legislation on business.

Explanatory statements for certain powers: appropriateness, equalities

333. Paragraph 28 sets out that certain explanatory statements must accompany statutory instruments made by ministers of the Crown under the delegated powers in sections 8(1), 9 or 23(1) or (jointly exercising) the equivalent powers in Schedule 2. These will require the minister to make statements:
     • that in the minister’s opinion the instrument does no more than is appropriate;
     • that there are good reasons for the instrument or draft, and that the provision made by the instrument or draft is a reasonable course of action;
     • where the regulations create a criminal offence, that there are good reasons for creating the criminal offence and for the penalty provided in respect of it;
     • indicating whether the draft legislation amends/repeals/revokes equalities legislation (the Equality Act 2010, the Equality Act 2006 or any secondary legislation made under either of those Acts) – and if so, what the effect is;
     • indicating that the minister has had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010, so far as required by equalities legislation;
     • explaining the instrument or draft and its purpose; and,
     • explaining what any relevant law did before exit day and how the retained EU law is being changed.
334. Sub-paragraph (1) specifies that these statements must be made before an instrument or a draft of it is laid before each House of Parliament. This means laid before each House for consideration by the sifting committees (for those proposed for the negative procedure), laid in draft (for those following the draft affirmative procedure), or laid after making (for those following the made affirmative procedure, or the negative procedure in urgent cases).
335. Sub-paragraph (8) sets out the consequence where a minister has failed to make the necessary statements. In such a scenario a minister must make a statement to Parliament explaining why the relevant minister failed to comply with the obligation in this paragraph.
336. Sub-paragraph (9) requires these statements to be made in writing and published in an appropriate manner. The Government expects that these statements should normally be published in the Explanatory Memoranda accompanying statutory instruments.
337. Sub-paragraph (10) provides that an instrument or draft to be laid before both Houses is to be considered as laid when it is first laid before either House. This might occur on different days where, for example one House is sitting and the other is not.
338. Sub-paragraph (11) avoids repeating the requirement to make statements where an equivalent draft or instrument has already been laid before both Houses. This avoids duplicate statements when, for example, an instrument has been laid for sifting and an equivalent instrument is then laid again after making (to follow the negative procedure) or in draft (to follow the affirmative procedure).
339. Paragraph 29 provides for equivalent explanatory statements to those in paragraph 28 to be made by the Scottish Ministers when making Scottish statutory instruments before the Scottish Parliament.

Further explanatory statements in certain sub-delegation cases

340. Paragraph 30 sets out that where a Minister of the Crown makes regulations under the delegated powers in section 8(1) to correct deficiencies, in section 9 to implement the withdrawal agreement or paragraph 1 of Schedule 4 to provide for fees and charges which create a relevant sub-delegated power a Minister must make a statement explaining why it is appropriate to do so.
341. Sub-paragraph (7) makes it clear that a relevant sub-delegated power means a power to legislate which is either not exercisable by a statutory instrument, (or Scottish statutory instrument or statutory rule); or a power which is exercisable by someone other than a ministers of the Crown or devolved administration.
342. Paragraph 31 provides for equivalent explanatory statements to those in paragraph 30 to be made by the Scottish Ministers when making Scottish statutory instruments before the Scottish Parliament.

Annual reports in certain sub-delegation cases

343. Paragraph 32 provides that any person by whom a relevant sub-delegated power (with the same meaning as in paragraph 30) is exercisable must, if they have exercised the power during a relevant year (either the year of any annual report or the calendar year), prepare, as soon as practicable, a report on the exercise of the power. The person must then lay the report before Parliament among other things.
344. Paragraph 33 provides for equivalent annual reports to be laid before the Scottish parliament where a relevant sub-delegate power is exercisable by virtue of a Scottish statutory instrument made by the Scottish Ministers.

Further explanatory statements in urgency cases

345. Paragraph 34 sets out that where a Minister of the Crown is using the urgent procedure set out in paragraphs 5 or 18 the Minister must make a statement explaining the reasons for using the urgency procedure.
346. Paragraph 35 provides for equivalent explanatory statements to those in paragraph 35 to be made by the Scottish Ministers when making urgent Scottish statutory instruments before the Scottish Parliament.

Hybrid instruments

347. Paragraph 36 sets out that regulations brought forward under the powers in this Act are never to be treated as hybrid instruments.1

Procedure on re-exercise of certain powers

348. Paragraph 37 provides that where an instrument modifies earlier regulations made under the Act, the rules for choosing the scrutiny procedure apply afresh.

Combinations of instruments

349. Paragraph 38 allows affirmative regulations under this Act to be combined with negative regulations under other powers.