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European Union (Withdrawal) Act 2018

Contents

Part 1: General consequential provision

Existing ambulatory references to retained direct EU legislation

  1. Paragraphs 1 and 2 of Schedule 8 set out what happens with existing ambulatory references after exit. As described above, these are cross-references to EU instruments as they may be amended from time to time in the future. Paragraph 1A of Schedule 2 to the ECA provided a power to make such references, and some have also been made in primary legislation and using other powers.
  2. The effect of paragraph 1(1) is that existing ambulatory references to EU regulations, decisions, tertiary legislation or provisions of the EEA agreement which are to be incorporated into domestic law under section 3 will, on exit day, become references to the retained versions of those instruments as they are modified from time to time by domestic law (unless the contrary intention appears). This approach ensures that modifications of EU law made by the EU on or after exit day do not form part of UK domestic law. The provision applies to ambulatory references which exist immediately before exit day, within (i) any enactment; (ii) any direct EU legislation retained by section 3 of the Act; and (iii) any document relating to anything falling within the former categories.
  3. As set out in paragraph 1(2), however, this does not affect ambulatory references contained in powers in other domestic legislation (i.e. other than the power contained in the ECA) which will be preserved under section 2 of the Act and are subject to a procedure before Parliament or in the devolved legislatures. Paragraph 1(3) provides that paragraph 1(1) is also subject to other provision made by or under this Act, including the powers in sections 8 and 9.

    4. Other existing ambulatory references

  4. Paragraph 2 provides that any other existing ambulatory references (which are not dealt with by paragraph 1) to any of the EU treaties, other EU instruments (such as directives) or any other document of an EU entity do not continue to update after exit day. So, for example, where there is a reference in domestic legislation to an ‘EU Directive as amended from time to time’, this paragraph ensures that the reference to the directive should be read as a reference to the version that had effect immediately before exit day. Any updates to that directive which occur after exit day would not be brought into domestic law. Regulations made under section 7 will be capable of correcting any deficiencies which arise as a result. The provision applies to ambulatory references which exist immediately before exit day, within (i) any enactment; (ii) any direct EU legislation retained by section 3 of the Act; and (iii) any document relating to anything falling within the former categories.
  5. As set out in paragraph 2(2), however, paragraph 2(1) does not affect ambulatory references contained in powers in other domestic legislation (i.e. other than the power contained in the ECA) which will be preserved under section 2 of the Act and which are subject to a procedure before Parliament or in the devolved legislatures. Paragraph 2(3) provides that paragraph 2(1) is also subject to other provision made by or under this Act, including the powers in sections 8 and 9.

    6. Existing powers to make subordinate legislation etc

  6. Paragraphs 3 to 8 set out how existing (pre-Royal Assent of this Bill) powers to make, confirm or approve subordinate legislation may operate on retained direct EU legislation and anything which is retained EU law by virtue of section 4.
  7. Paragraph 3 provides that existing powers which can amend primary legislation, can amend retained direct principal EU legislation (which broadly covers EU Regulations), retained direct minor EU legislation (which broadly covers EU Tertiary legislation and EU decisions) and anything which is retained EU law by virtue of section 4.
  8. Paragraph 4(1) and (2) sets out that when a power is exercised by virtue of paragraph 3 and amends retained direct principal EU legislation or anything which is retained EU law by virtue of section 4 it is subject to the same scrutiny procedure before Parliament or the devolved assemblies as for amending primary legislation. Paragraph 4(3) and (4) provides that when a power is exercised by virtue of paragraph 3 and amends retained direct minor EU legislation it is subject to the same scrutiny procedure before Parliament or the devolved assemblies as for amending subordinate legislation. This is subject to the amendment being a connected modification.
  9. Paragraph 4(5) provides that when a power is exercised by virtue of paragraph 3 and amends retained direct principal EU legislation, retained direct minor EU legislation or anything which is retained EU law by virtue of section 4 as a connected modification, it is subject to the same scrutiny procedure before Parliament or the devolved assemblies as for the main modification to which it connects. A connected modification is defined in paragraph 4(10) as supplementary, incidental, consequential, transitional, or transitory or saving to another modification of retained direct EU legislation or anything which is retained EU law by virtue of section 4 or anything else done under the power.
  10. Paragraph 4(6) provides that where different procedures apply for powers under paragraph 3 they can be combined in the same instrument. Paragraph 4(7) provides that where there are different scrutiny procedures then the highest procedure would apply.
  11. Paragraph 5 provides that existing powers that are not capable of amending primary legislation can amend retained direct minor EU legislation (which is broadly EU tertiary legislation and decisions). Paragraph 5(3) provides that such powers, when amending retained direct minor EU legislation, are capable of making supplementary, incidental or consequential amendments to any retained direct principal EU legislation and anything which is retained EU law by virtue of section 4. Paragraph 5(4) provides that powers to make transitional, transitory or saving provisions are capable of amending retained direct EU legislation or anything which is retained by virtue of section 4.
  12. Paragraph 6 sets out that when a power is exercised by virtue of paragraph 5, it is subject to the same scrutiny procedure before Parliament or the devolved assemblies as it would normally be subject to. .
  13. Paragraph 7 also lifts, on or after exit day, any implied EU law restriction which might otherwise attach to powers to make, confirm or approve subordinate legislation immediately before exit day.
  14. Paragraph 8 provides a number of exceptions and clarifications to the existing powers paragraphs and allows for the anticipatory use of delegated powers in relation to retained EU law. This means that existing powers can be exercised before exit day to amend retained EU law if they come into force on or after exit day.

    15. Review provisions in existing subordinate legislation

  15. Paragraph 9 deals with duties to conduct post-implementation reviews of regulations made before exit, such as under section 28 of the Small Business, Enterprise and Employment Act 2015. In conducting those reviews, ministers will not now need to have regard to how EU member states have implemented former EU obligations.

    16. Future powers to make subordinate legislation

  16. Paragraphs 10 and 11 provide glosses on how future (post-Royal Assent of this Bill) powers to make, confirm or approve subordinate legislation may operate on retained direct EU legislation and anything which is retained EU law by virtue of section 4.
  17. Paragraph 10(2) provides that future powers to amend subordinate legislation can amend retained direct minor EU legislation.
  18. Paragraph 10(3) also provides that future powers to amend subordinate legislation can, context permitting, make modifications, which are supplementary, incidental or consequential to the modification of retained direct minor EU legislation, to retained direct principal EU legislation or anything which is retained EU law by virtue of section 4.
  19. Paragraph 10(4) operates on all future transitional, transitory or saving powers and provides that they may amend any retained direct EU legislation or anything which is retained EU law by virtue of section 4.
  20. Paragraph 11 provides that any future power which can amend retained direct principal EU legislation will be permitted to non-textually modify any retained direct EU legislation or anything that is retained EU law by virtue of section 4
  21. Paragraph 12 provides a number of exceptions and clarifications to the future powers paragraphs and allows anticipatory use of future powers in relation to retained EU law, including those powers in Acts which are passed after and in the same session as this Bill. This means that such powers can be exercised before exit day to amend retained EU law if they come into force on or after exit day.

    22. Affirmative procedure for instruments which amend or revoke subordinate legislation made under section 2(2) of the ECA (including subordinate legislation implementing EU directives)

  22. Paragraph 13 provides for the affirmative procedure to apply to certain statutory instruments made on or after exit day which would otherwise be subject to a lesser parliamentary procedure before Parliament.
  23. The requirements apply to statutory instruments that amend or revoke subordinate legislation made under section 2(2) ECA, and which are:
    • made by a Minister of the Crown;
    • made under a power conferred before the beginning of the 2017-2019 session; and
    • not made jointly or otherwise subject to a procedure in another legislature (for example, the Scottish Parliament).
  24. A statutory instrument caught by the requirements in sub-paragraph (1) must follow the affirmative procedure in Parliament unless a higher procedure would apply (see sub-paragraphs (1) and (2); the ranking of procedures is set out in sub-paragraph (6)). This means the instrument must be laid in draft and approved by a resolution of each House of Parliament. In the case of instruments that are ordinarily required to be laid before the House of Commons only, the paragraph requires the instrument to be laid as a draft affirmative instrument before the House of Commons only (sub-paragraph (5)). Other procedural requirements attaching to the making of the instrument are not affected (sub-paragraph (2)).
  25. Sub-paragraph (8) makes specific provision about what is "subordinate legislation under section 2(2) of the ECA" for the purposes of this paragraph (this also applies to paragraphs 14 and 15). Essentially, this refers to provisions that are made under section 2(2) ECA, whether they appear in a statutory instrument by amendment or otherwise. "Subordinate legislation" is, for these purposes:
    • in an instrument made under a power other than section 2(2) ECA, text inserted into that instrument by amendments made under section 2(2) ECA;
    • in an instrument made under both section 2(2) ECA and other powers, provisions made under section 2(2) ECA alone; or
    • in an instrument made entirely under section 2(2) ECA which has not been amended, other than using powers in section 2(2) ECA, all of the provisions in that instrument.
  26. But "subordinate legislation" does not include, for these purposes:
    • in an instrument made under section 2(2) ECA and other powers, any provision made under powers other than section 2(2) ECA. This includes whether the provision is made in the original instrument or added by amendment.;
    • in an instrument made solely under section 2(2) ECA which has been amended using another power, the provisions inserted by that other power
    • in an instrument made solely under a power other than section 2(2) ECA which has been amended using section 2(2) ECA, the provisions other than the text inserted by an amending instrument made section 2(2) ECA; or,
    • provisions inserted into primary legislation under section 2(2) ECA.
  27. Instruments subject to the affirmative procedure by virtue of this paragraph may be combined with other instruments subject to a lower procedure (sub-paragraph (3)). A statutory instrument that does not amend or revoke provision made under section 2(2) of the ECA but would otherwise meet the tests in sub-paragraph (1) may be made by the draft affirmative procedure, even though it would normally be required to follow a lower procedure (sub-paragraph (4)). This may assist in cases where an instrument to be amended is made under more than one power and it is difficult to distinguish the specific power in relation to a given provision.

    28. Enhanced scrutiny procedure for instruments which amend or revoke subordinate legislation under section 2(2) of the ECA (including subordinate legislation implementing EU directives)

  28. Paragraph 14 provides for the an enhanced procedure to apply to certain statutory instruments to be laid before Parliament which are made after exit (for purposes of this paragraph, the definition of "subordinate legislation" explained above in relation to paragraph 13 applies).
  29. The requirements apply to statutory instruments that amend or revoke subordinate legislation made under section 2(2) ECA which are:
    • made by a Minister of the Crown or another authority1;
    • made under a power conferred before the beginning of the 2017-2019 session; and,
    • not subject to a procedure in another legislature (such as the Scottish Parliament).
  30. A statutory instrument subject to the requirements of this paragraph must be published in draft at least 28 days before it is intended to be laid before Parliament (or before the House of Commons alone, as set out in sub-paragraph (8)). The calculation of time is intended to exclude recesses and so excludes periods when Parliament is dissolved or prorogued, and any period when either House is adjourned for more than four days (sub-paragraph (9)(d)).
  31. A "scrutiny statement" must be made by the Minister or other authority before the instrument or a draft of it is laid before Parliament (sub-paragraph (3)). Sub-paragraph (4) sets out the required content. The statement must:
    • explain steps taken to make the published draft statutory instrument available to Parliament,
    • set out the response to any recommendations made by a parliamentary committee,
    • set out the response any other representations made to the Minister or authority about the published draft instrument; and,
    • give any other information which the Minister or authority considers is appropriate in relation to scrutiny of the proposed instrument.
  32. The scrutiny statement must be in writing and published in a manner the Minister or authority considers appropriate (sub-paragraph 5). The Government expects that the statement would normally be published in the Explanatory Memoranda accompanying the statutory instrument.
  33. Sub-paragraph (6) provides for an urgent procedure whereby a statutory instrument may be made without being published in draft and without a scrutiny statement being made. The Minister or authority relying on this provision must make a written statement that the Minister or authority is of the opinion that, by reason of urgency, these requirements should not apply. The written statement about urgency must be published as the Minister or authority deems appropriate. (Other requirements which may affect such instruments under paragraphs 13 and 15 of Part 1 of Schedule 8 will still apply.)

    34. Explanatory statements for instruments amending or revoking regulations etc. under section 2(2) of the ECA

  34. Paragraph 15 imposes a requirement for certain statements to be made in relation to statutory instruments that amend or revoke subordinate legislation made under section 2(2) ECA (for purposes of this paragraph, the definition of "subordinate legislation" explained above in relation to paragraph 13 applies).
  35. The requirement in this paragraph applies to statutory instruments or draft instruments to be laid before the Houses of Parliament (or before the House of Commons alone (sub-paragraph (1)). It applies whether the statutory instrument is made under powers conferred before, on or after exit day - but does not apply to powers under the Act itself. The duty falls on a Minister of the Crown or other authority making the instrument2.
  36. The statements must be in writing and made before the instrument or draft instrument is laid before Parliament. It must be published in such manner as the Minister or authority considers appropriate (sub-paragraphs (2), (3) and (5)). The Government expects that these statements should normally be published in the Explanatory Memoranda accompanying the statutory instrument to which they relate.
  37. The statements must set out the "good reasons" for the amendment or revocation (sub-paragraph (2)), the law which is relevant to the amendment or revocation, and the effect of the amendment or revocation on retained EU law (sub-paragraph (3)).
  38. If the statement is not made as required before the instrument or draft instrument is laid, the Minister or authority must make a statement explaining the failure to do so (sub-paragraph (4)).
  39. Paragraph 16 provides for equivalent explanatory statements to those in paragraph 15 to be made by the Scottish Ministers when making Scottish statutory instruments before the Scottish Parliament.

1 For example, powers to make subordinate legislation are delegated to the Forestry Commission, a non-ministerial government department. Orders in Council made by HM the Queen and Orders of Council made by the Privy Council are also caught by the requirements but in the cases of such Orders, the Minister with responsibility (in effect, policy responsibility) must meet the requirements of this paragraph - see sub-paragraph (11).

2 For example, powers to make subordinate legislation are delegated to the Forestry Commission, a non-ministerial government department. Orders in Council made by HM the Queen and Orders of Council made by the Privy Council are also caught by the requirements but in the cases of such Orders, the Minister with responsibility (in effect, policy responsibility) must meet the requirements of this paragraph - see sub-paragraph (9).

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