Section 12: Retaining EU restrictions in devolution legislation etc.
- The Scotland Act 1998, Northern Ireland Act 1998, and Government of Wales Act 2006 currently require the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales respectively to legislate in a way that is compatible with EU law.
- Subsections (1), (3) and (5) remove this requirement from each of these Acts for after exit day. Subsections (2), (4) and (6) instead provide that the devolved legislatures cannot legislate contrary to restrictions specified by a Minister of the Crown in regulations.
- Subsection (2) inserts a new section 30A into the Scotland Act 1998:
- New subsection (1) of section 30A creates a power for a Minister of the Crown to specify by regulations areas in which the Scottish Parliament may not modify, or confer powers to modify, retained EU law. This power could also be used to revoke such regulations.
- New subsection (2) provides that any restriction applied using the power in subsection (1) does not affect the competence of the Scottish Parliament to make any provision that it could have made immediately before exit day.
- New subsection (3) requires that before regulations under subsection (1) can be put to the UK Parliament for approval, a decision on consent must have been made by the Scottish Parliament, or a 40 day period must have elapsed in which no consent decision has been made.
- New subsection (4) defines what constitutes a decision on consent. It sets out the different ways in which the Scottish Parliament could signify whether it agrees, or does not agree, to the laying of draft regulations before the UK Parliament.
- New subsection (5) requires that a Minister of the Crown proposing to lay draft regulations under subsection (1) must provide a copy to the Scottish Ministers and inform the Presiding Officer of the Scottish Parliament.
- New subsections (7) and (9) provide that the power in subsection (1) will expire two years after exit day and the regulations made under the power will expire five years after they come into force.
- New subsection (10) sets out that the provisions in subsections (3) to (8) do not apply (i.e. the consent process does not apply) for the purposes of revoking regulations made under the power in subsection (1).
- New subsection (11) provides that the 40 day period in subsection (3) begins when the draft regulations are provided to the Scottish Ministers and does not include any period where the Scottish Parliament is dissolved, or in recess for more than four days.
- Subsections (4) and (6) insert equivalent provisions into the Government of Wales Act 2006 and the Northern Ireland Act 1998 respectively.
- Subsection (9) provides a power for a Minister of the Crown by regulations to repeal any of the new powers that ‘freeze’ devolved competence in relation to retained EU law.
- Subsections (10) and (11) place a duty on a Minister of the Crown to consider, every three months, whether to repeal the new powers or to revoke regulations made under those powers, and specify matters to which the minister must have regard in undertaking the consideration of whether to exercise the power to repeal in subsection (9).
