Section 8: Dealing with deficiencies arising from withdrawal
- Section 8(1) gives ministers of the Crown a power to make secondary legislation to deal with deficiencies that would arise on exit in retained EU law. This includes the law which is preserved and converted by sections 2, 3 and 4 (i.e. both domestic law and directly applicable EU law). These problems, or deficiencies, must arise from the UK’s withdrawal from the EU (which includes the consequence that the UK will cease to participate in the EEA Agreement).
- The law is not deficient merely because a minister considers that EU law was flawed prior to exit. A minister is able to take action before exit in order to prevent the deficiency from arising. For the purposes of section 8(1), a failure of retained EU law is a type of deficiency: a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.
- Subsection (2) explains the sorts of deficiencies that the power can deal with. These include:
- provisions that have no practical application after the UK has left the EU;
- provisions on functions that are currently being carried out in the EU on the UK’s behalf, for example by an EU agency;
- provisions on reciprocal arrangements or rights between the UK and other EU member states that are no longer in place or are no longer appropriate;
- any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate;
- EU references that are no longer appropriate.
- Subsection (2) also provides that if a function or restriction is contained in a directive and has not been transposed into domestic law, and therefore is not retained by the Act, this can be a deficiency. For example, if the UK has implemented a directive but has not implemented the provisions in the directive which provide for the Commission or EU agency to carry out a function, the absence of this function in retained EU law could be a deficiency in the implementing legislation after the UK leaves the EU. The correcting power could be used to recreate the function.
- Subsection (3) also provides that deficiencies not on the list but which are "of a similar kind" to those on the list in subsection (2) are within the scope of the correcting power. For example, section 8(2)(c)(ii) refers to the public authorities of EU member states; deficiencies related to public authorities of EEA-EFTA states will be of a similar kind to those related to public authorities of EU member states, so they benefit from the sweeper provision in subsection (3).
- There are more detailed examples of possible deficiencies and corrections in the Government White Paper Legislating for the United Kingdom’s Withdrawal from the European Union
(pages 20 - 21) and a further example in the policy background section of these notes.
- Subsection (3) also contains a delegated power for ministers of the Crown to provide for additional sorts of deficiencies. This power will be exercisable by statutory instrument subject to the affirmative procedure (see Schedule 7, paragraph 1(5)).
- Subsection (4) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient.
- Subsection (5) provides that secondary legislation made under the power in this section can do anything an Act of Parliament might to deal with deficiencies. This could include altering Acts of Parliament where appropriate and sub-delegating the power to a public authority where they are best placed to deal with the deficiencies. However, the power is subject to the restrictions set out in subsection (7). The power cannot be used to impose or increase taxation or fees, make retrospective provision, create a relevant criminal offence, establish a public authority, amend the Human Rights Act 1998 or any subordinate legislation made under it, amend the devolution Acts (except in certain specific and limited ways), or for the purposes of implementing the withdrawal agreement (separate provision is made for implementation of the withdrawal agreement in section 9).
- Subsection (6) provides, non-exhaustively, for what the secondary legislation made under this power can do. For example, it can transfer the functions of EU authorities to UK public authorities. These functions might include the ability to set rules or create standards, which are currently made by the EU as non-legislative acts (delegated and implementing acts). The power can be used to repeal, amend or replace parts of the retained law. There will be other uses of the power necessary to correct deficiencies. The power could be used to amend law which is not retained EU law where that is an appropriate way of dealing with a deficiency in retained EU law.
- Subsection (8) makes clear that the temporary power in this section can only be used for up to two years after exit day, as it expires at that point. Paragraph 40 of Schedule 8 provides that it is the power and not the regulations which expires.
- Subsection (9) provides that the meaning of deficiency can cover a deficiency that arises out of withdrawal taken together with the operation of, or interaction between, provisions of the Act or provisions made under the Act.
- The parliamentary scrutiny procedures for the exercise of the power in subsection (1) are set out in Part 1 of Schedule 7.
