Delegated powers
- A large amount of EU law currently applies in the UK. A proportion of this will continue to operate properly once the UK leaves the EU simply by preserving it or converting it into UK law. However, a significant proportion of retained EU law for which Government departments and devolved administrations are responsible contains some provisions that will not function effectively or be otherwise deficient once the UK leaves the EU.
- There are a variety of reasons why some areas of retained EU law will be unable to operate because the UK is no longer a member of the EU. There will also be cases where retained EU law will cease to operate as intended or will be redundant once the UK leaves the EU. For this reason, the Act includes a power to enable ministers to correct problems arising from withdrawal by way of making regulations by statutory instruments. Some examples are in the text box below, while further examples can be found in the delegated powers memorandums which were published during the Act’s parliamentary passage.1
Possible uses of the power to correct problems arising from withdrawal
Throughout the statute book, there are references which will no longer be accurate once the UK leaves the EU, such as references to "member states other than the United Kingdom", to "EU law", or to providing for the UK’s "EU obligations". Such references will need to be repealed or amended to ensure the UK has a functioning statute book post-exit.
For example, the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to "other EEA States" in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to "other EEA States" to "EEA States", would allow the requirement on transboundary consultation to continue to function on exit as it does now, reflecting the fact that the UK will have left the EEA. This would enable an important piece of environmental protection law to continue to operate effectively.
In addition to this, there will be law which will, upon leaving the EU, no longer works properly and which will need to be corrected to continue to work; for example, where law requires the UK to obtain an opinion from the European Commission on a given issue. Upon exit, the Commission will no longer provide such opinions to the UK. Such requirements in existing law would prevent certain projects from taking place unless corrective action was taken. In this instance the power to correct the law would allow the Government to amend UK domestic legislation to either replace the reference to the Commission with a UK body or remove this requirement completely.
There are many important functions carried out at EU level, such as the evaluation and authorisation of chemicals, air safety regulation and genetically modified food and feed regulation. Depending on what is agreed with the EU, many functions may need to be transferred to appropriate bodies in the UK for them to continue and the power to deal with deficiencies would enable this.
Once the UK leaves the EU, there will also be areas of law where policy no longer operates as intended. One element of EU law is the reciprocal arrangements between states including reciprocal rights of citizens. As a matter of international law, those obligations will fall away at the point where the UK leaves the EU. At the same point, EU states’ obligations under EU law to the UK and its citizens will also fall away. Any such obligations beyond that time will only exist if they are covered in the withdrawal agreement. However, without a correction, the UK’s law would still include recognition of EU citizens’ rights. The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals.
- Similar issues also exist in legislation that is the responsibility of the devolved administrations, such as that made under the ECA. The Act therefore also gives devolved ministers a power to amend devolved legislation to correct any problems in retained EU law, in line with the power held by UK ministers.
- The power to correct problems arising from withdrawal is capable of being used to transfer to public authorities in the UK functions that are currently exercised by EU authorities. These powers will be available from Royal Assent until the end of the period of two years beginning with exit day.2
- To enable UK public authorities to exercise inherited EU functions effectively, the Act also contains powers enabling the UK authority to raise fees or other charges for services that have been transferred from the EU to an authority in the UK or otherwise created as a result of the UK leaving the EU. This could include a fee for issuing a licence or approving a product. The Act also provides for modification of existing fees or charges which were created pre-exit using powers in the ECA or the Finance Act 1973
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- Finally, the Act provides the Government with a limited power to implement a withdrawal agreement reached with the EU into UK law, in preparation for that agreement coming into force on the day the UK leaves the EU. This is a separate process from that by which the Government will ask Parliament to approve the agreement and from the ratification of that agreement. The use of the power is subject to the enactment of a statute approving the final terms of withdrawal of the UK from the EU. This power will expire on exit day and is therefore restricted to implementation of things required for day one. For example, if there was relevant provision in the withdrawal agreement, the power could be used to clarify the situation in relation to regulatory approvals for UK products that were pending at the point of exit.
- The powers outlined in paragraphs 26, 29 and 30 of these notes are also available to the devolved administrations, subject to the detailed provisions set out in the commentary below. The Government can use these powers to amend retained EU law in areas of devolved competence, but will not normally do so without the agreement of the devolved administrations. The Government will use the powers in sections 8 and 9 to amend retained direct EU legislation in areas where devolved competence is limited by section 12 ‘freezing’ regulations but which would otherwise be devolved. In those areas where section 12 regulations apply, the Government will not use the correcting or withdrawal agreement powers to amend such legislation without first consulting the relevant devolved administration(s).
- Paragraph 28 of Schedule 7 sets out that UK ministers will be required to make explanatory statements in relation to the exercise of certain powers (those in sections 8(1), 9(1) and 23(1)). This requirement is in addition to the commitment in the first delegated powers memorandum published when the Act began its parliamentary passage, which provides that UK ministers will include alongside statutory instruments made under the other powers in the Act a statement that the minister considers that the instrument does no more than what is appropriate. As stated in the delegated powers memorandum, the intention is that these statements will usually be published in explanatory memoranda accompanying statutory instruments in addition to the usual requirements.
- Paragraphs 3 and 17 of Schedule 7 require ministers of the Crown to submit statutory instruments which they are proposing to make under the negative procedure under three powers in the Act (those in sections 8(1), 9(1) and 23(1)) to a committee of each House. These sifting committees will have ten sitting days to accept the recommended procedure or propose upgrading to the affirmative procedure. If the Minister disagrees with a recommendation of a committee they will be required to make a statement in writing explaining why they disagree. The detail of how this committee will operate in the Commons is currently included in draft Standing Orders (published on a House of Commons' Order Paper).
- Further delegated powers contained in the Act are set out in the commentary on provisions of the Act section of these notes.
1 See section ‘Delegated Powers Memoranda’ at https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal/documents.html
2 Although the expiry of the power does not affect the continuation in force of any regulations already made, see paragraph 40 of Schedule 8 to the Act.
