Part 1: Dealing with deficiencies arising from withdrawal
- Part 1 provides powers for the devolved authorities (defined in section 20 as the Scottish Ministers, the Welsh Ministers and Northern Ireland departments) to deal with deficiencies arising from withdrawal.
- Paragraph 1 provides that the power to deal with deficiencies arising from withdrawal can be used by devolved authorities acting alone, or by ministers of the Crown and devolved authorities acting jointly. The same restrictions on UK ministers’ power in section 8 also apply to devolved authorities’ power in this Part. Changes made using the power conferred on ministers of the Crown in section 8(3) will also apply to the devolved authorities’ power in this Part.
- Paragraph 2 provides that the power to deal with deficiencies arising from withdrawal cannot be used outside of devolved competence, as defined in paragraphs 8 to 11 of this Schedule, where exercised by devolved authorities acting alone.
- Sub-paragraph (1) of paragraph 3 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 deal with deficiencies to modify direct retained EU legislation, modify retained EU law under section 4, or confer functions that correspond to functions to make EU tertiary legislation.
- Sub-paragraphs (2) and (3) make corresponding provision for the Welsh Ministers and Northern Ireland departments respectively.
- Sub-paragraph (4) prohibits the devolved authorities, when acting alone, from using the 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). For example, where the UK Government has modified an EU regulation, in way which the devolved authority could not, and a devolved authority is correcting domestic legislation which sets out enforcement provisions for that EU regulation, the domestic legislation will need to be corrected in a way that is consistent with the modified EU regulation.
- Paragraph 4 sets out the requirement for the devolved authorities to consult the UK Government prior to using the power in certain circumstances where acting alone. These circumstances are where either the legislation is being commenced prior to exit day, or where the legislation relates to the unwinding of reciprocal arrangements.
- Paragraph 5 sets out that if a devolved authority is making a provision using the power to deal with deficiencies arising from withdrawal that would require consent if it were a provision in legislation of the relevant devolved legislature or where the devolved administration would normally require consent to make such a provision via secondary legislation, then that consent will still be required. This will not apply if the devolved authority already has power to make such provision using secondary legislation without needing the consent of the minister of the Crown.
- Paragraph 6 sets out that where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the power to deal with deficiencies.
- Paragraph 7 requires consultation with the UK Government on legislation made by a devolved authority in the exercise of the power to deal with deficiencies, where the devolved authority would normally be required to consult with the UK Government when making those kind of changes in legislation.
- Paragraphs 8 to 11 clarify the extent of devolved competence in relation to the exercise of the power to deal with deficiencies arising from withdrawal.
- Paragraph 8 relates to the competence of the Scottish Ministers. Sub-paragraph (1)(a) relates to legislative competence, and sets out that the Scottish Ministers may exercise the power to deal with deficiencies where the Scottish Parliament has legislative competence. The definition of ‘legislative competence’ for the purposes of exercising this power disapplies the normal restriction on the Scottish Parliament’s competence which prevents the Scottish Parliament from legislating in a way that is incompatible with EU law. This disapplication is necessary to enable the Scottish Ministers to make all necessary regulations under this power to correct deficiencies in devolved areas. This is because correcting deficiencies in retained EU law will inevitably require some changes that would be incompatible with EU law and therefore would be outside the normal legislative competence of the Scottish Parliament.
- Sub-paragraph (2) relates to those secondary legislation making powers which are not within legislative competence but are within executive competence of the Scottish Ministers (these would include, for example, secondary legislation making functions transferred to the Scottish Ministers under section 63 of the Scotland Act 1998). This sets out that the Scottish Ministers may act to correct secondary legislation which has been made under their executive competence, even where those corrections would not be within the legislative competence as described in sub-paragraph (1). This is subject to certain restrictions described in sub-paragraph (2) around application, extent and subject matter of those corrections.
- Paragraph 9 relates to the competence of the Welsh Ministers and makes the same provision for the Welsh Ministers as for the Scottish Ministers as set out in paragraph 8. The Welsh Ministers will be able to exercise the power to deal with deficiencies in areas within the National Assembly for Wales’ legislative competence (disapplying the normal restrictions preventing the National Assembly for Wales from legislating in a way that is incompatible with EU law) and to correct deficiencies in legislation which has been made under their executive competence.
- Paragraph 10 relates to the competence of Northern Ireland departments. Sub-paragraph (1)(a) deals with transferred matters, providing that Northern Ireland devolved authorities may make regulations using the power to deal with deficiencies in any areas which would be within the Northern Ireland Assembly’s legislative competence, and which would not require consent of the Secretary of State for Northern Ireland. Sub-paragraph (1)(b) deals with reserved matters, providing that where Northern Ireland legislation has previously been made in relation to reserved matters, Northern Ireland departments and ministers will be able to use the power to deal with deficiencies to amend this legislation.
- In both sub-paragraphs (1)(a) and (1)(b) the existing restriction on legislative competence that would make it outside of legislative competence to act in a way that is incompatible with EU law is disapplied in defining legislative competence for the purpose of this power. Sub-paragraph (2) makes the same provision as for Scottish and Welsh ministers so that Northern Ireland departments can exercise the power to deal with deficiencies to correct legislation which has been made under their executive competence.
Power to deal with deficiencies
No power to make provision outside devolved competence
No power to modify retained direct EU legislation or confer certain functions
Requirement for consultation in certain circumstances
Requirement for consent where it would otherwise be required
Requirement for joint exercise where it would otherwise be required
Requirement for consultation where it would otherwise be required
Meaning of devolved competence: Part 1
