SCHEDULES
SCHEDULE 8Consequential, transitional, transitory and saving provision
Part 1General consequential provision
Existing ambulatory references to retained direct EU legislation
I231
1
a
exists in—
i
any enactment,
ii
any EU regulation, EU decision, EU tertiary legislation or provision of the EEA agreement which is to form part of domestic law by virtue of section 3, or
iii
any document relating to anything falling within sub-paragraph (i) or (ii), and
b
is a reference to (as it has effect from time to time) any EU regulation, EU decision, EU tertiary legislation or provision of the EEA agreement which is to form part of domestic law by virtue of section 3,
is to be read, on or after F46IP completion day, as a reference to the EU regulation, EU decision, EU tertiary legislation or provision of the EEA agreement as it forms part of domestic law by virtue of section 3 and, unless the contrary intention appears, as modified by domestic law from time to time.
2
Sub-paragraph (1) does not apply to any reference F12so far as it forms part of a power to make, confirm or approve subordinate legislation so far as the power to make the subordinate legislation—
a
continues to be part of domestic law by virtue of section 2, and
b
is subject to a procedure before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.
3
Sub-paragraphs (1) and (2) are subject to any other provision made by or under this Act or any other enactment.
F5Existing ambulatory references to relevant separation agreement law
1A
1
Any reference which, immediately before IP completion day—
a
exists in—
i
any enactment,
ii
any EU regulation, EU decision, EU tertiary legislation or provision of the EEA agreement which is to form part of domestic law by virtue of section 3, or
iii
any document relating to anything falling within sub-paragraph (i) or (ii), and
b
is a reference to (as it has effect from time to time) any of the EU Treaties, any EU instrument or any other document of an EU entity,
is, if the treaty, instrument or document has effect on or after IP completion day by virtue of section 7A or 7B and so far as required for the purposes of relevant separation agreement law, to be read on or after that day as, or including, a reference to the treaty, instrument or document as it so has effect (including, so far as so required, as it has effect from time to time).
2
In sub-paragraph (1) “treaty” includes any international agreement (and any protocol or annex to a treaty or international agreement).
3
Sub-paragraphs (1) and (2) are subject to any other provision made by or under this Act or any other enactment.
Other existing ambulatory references
C4I202
1
Any reference F41so far as it—
a
exists, immediately before F18IP completion day, in—
i
any enactment,
ii
any EU regulation, EU decision, EU tertiary legislation or provision of the EEA agreement which is to form part of domestic law by virtue of section 3, or
iii
any document relating to anything falling within sub-paragraph (i) or (ii),
b
is not a reference to which paragraph 1(1) applies, and
c
is, immediately before F18IP completion day, a reference to (as it has effect from time to time) any of the EU Treaties, any EU instrument or any other document of an EU entity,
2
Sub-paragraph (1) does not apply to any reference F4so far as it forms part of a power to make, confirm or approve subordinate legislation so far as the power to make the subordinate legislation—
a
continues to be part of domestic law by virtue of section 2, and
b
is subject to a procedure before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.
F212A
Sub-paragraph (1) does not apply so far as any reference forms part of relevant separation agreement law.
3
Sub-paragraphs (1) F11to (2A) are subject to any other provision made by or under this Act or any other enactment.
F45Existing non-ambulatory references
Sch. 8 para. 2A and cross-heading inserted (31.12.2020) by The European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020 (S.I. 2020/1447), regs. 1(3), 3(2)(d) (as amended by S.I. 2020/1636, regs. 1(3), 4(2))
C32A
1
Any reference which, immediately before IP completion day—
a
exists in—
i
any enactment, or
ii
any EU regulation, EU decision, EU tertiary legislation or provision of the EEA agreement which is to form part of domestic law by virtue of section 3, and
b
is a reference to any of the EU Treaties, any EU instrument or any other document of an EU entity as it has effect at a particular time which is earlier than IP completion day,
is to be read, on or after IP completion day, in accordance with one or more of sub-paragraphs (2) to (4).
2
If the treaty, instrument or document has effect by virtue of section 7A or 7B on or after IP completion day and so far as required for the purposes of relevant separation agreement law, the reference is to be read on or after that day as, or as including, a reference to the treaty, instrument or document as it so has effect (including, so far as so required, as it has effect from time to time).
3
So far as—
a
the reference is a reference to—
i
any EU regulation, EU decision or EU tertiary legislation,
ii
any provision of the EEA agreement, or
iii
any part of anything falling within sub-paragraph (i) or (ii),
b
what has been referred to (“the subject law”) is to form part of domestic law by virtue of section 3 or forms part of domestic law by virtue of section 1 of the Direct Payments to Farmers (Legislative Continuity) Act 2020, and
c
there has been no relevant modification of the subject law after the particular time and before IP completion day (or, where the subject law forms part of domestic law by virtue of section 1 of the Direct Payments to Farmers (Legislative Continuity) Act 2020, before exit day),
the reference is to be read, on or after IP completion day, as a reference to the subject law as it forms part of domestic law by virtue of section 3 or (as the case may be) section 1 of the Direct Payments to Farmers (Legislative Continuity) Act 2020.
4
So far as the reference is not to be read in accordance with sub-paragraphs (2) and (3), the reference is to be read, on or after IP completion day, as a reference to the treaty, instrument or document as it had effect in EU law at the particular time.
5
Sub-paragraph (3) does not determine whether, where the subject law is modified by domestic law on or after IP completion day, the reference is to be read as a reference to the subject law as modified; but, where the subject law forms part of domestic law by virtue of section 1 of the Direct Payments to Farmers (Legislative Continuity) Act 2020 and is modified by domestic law before IP completion day, the reference is to be read by virtue of sub-paragraph (3) as a reference to the subject law as so modified.
6
This paragraph is subject to any provision made by or under this Act or any other enactment.
6A
This paragraph does not apply to a reference in—
a
the Direct Payments to Farmers (Legislative Continuity) Act 2020 or any subordinate legislation made under that Act, or
b
any retained direct EU CAP legislation (within the meaning given by section 2(10) of that Act).
7
In this paragraph—
“relevant modification” means any modification in EU law which—
- a
is to form part of domestic law by virtue of section 3 or forms part of domestic law by virtue of section 1 of the Direct Payments to Farmers (Legislative Continuity) Act 2020, and
- b
would, if the reference were to the subject law as modified, result in an alteration to the effect of the reference (ignoring any alteration which is irrelevant in the context concerned);
- a
“the subject law” has the meaning given by sub-paragraph (3)(b);
“treaty” includes any international agreement (and any protocol or annex to a treaty or international agreement).
Existing powers to make subordinate legislation etc.
I43C5I143
1
Any power to make, confirm or approve subordinate legislation which—
a
was conferred before the day on which this Act is passed, F59...
F59b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
is to be read, so far as the context permits or requires, as being capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct EU legislation or anything which is retained EU law by virtue of section 4.
F602
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I45C5I16C64
F631
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F632
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F633
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F634
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F635
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F615A
Any subordinate legislation which is (or is to be) made, confirmed or approved by virtue of paragraph 3 is subject to the same procedure (if any) before Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly as would apply to that legislation if it were amending or revoking an enactment contained in subordinate legislation made under a different power.
6
Any provision which may be made, confirmed or approved by virtue of paragraph 3 may be included in the same instrument as any other provision which may be so made, confirmed or approved.
7
Where more than one procedure of a kind falling within sub-paragraph (8) would otherwise apply in the same legislature for an instrument falling within sub-paragraph (6), the higher procedure is to apply in the legislature concerned.
8
The order of procedures is as follows (the highest first)—
a
a procedure which requires a statement of urgency before the instrument is made and the approval of the instrument after it is made to enable it to remain in force,
b
a procedure which requires the approval of the instrument in draft before it is made,
c
a procedure not falling within paragraph (a) which requires the approval of the instrument after it is made to enable it to come into, or remain in, force,
d
a procedure which provides for the annulment of the instrument after it is made,
e
a procedure not falling within any of the above paragraphs which provides for the laying of the instrument after it is made,
f
no procedure.
9
F6210
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F655
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F666
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I44C5I33F137
Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read—
a
on or after exit day, without that restriction, and
b
on or after IP completion day, without any corresponding restriction in relation to compatibility with retained EU law,
so far as the restriction concerned is not applicable to and in the United Kingdom by virtue of the withdrawal agreement.
I42C5I358
1
Paragraphs 3 to 7 and this paragraph—
a
do not prevent the conferral of wider powers,
F36b
... and
c
are subject to any other provision made by or under this Act or any other enactment.
2
For the purposes of paragraphs 3 and 5—
a
a power is conferred whether or not it is in force, and
b
a power in retained direct EU legislation is not conferred before the day on which this Act is passed.
3
A power which, by virtue of paragraph 3 or 5 or any Act of Parliament passed before, and in the same Session as, this Act, is capable of being exercised to modify any retained EU law is capable of being so exercised before F30IP completion day so as to come into force on or after F30IP completion day.
Review provisions in existing subordinate legislation
I259
1
In carrying out a review of a provision of subordinate legislation on or after F34IP completion day (whether under provision made in accordance with section 28 of the Small Business, Enterprise and Employment Act 2015 or otherwise), a person is not required, by any F6pre-IP completion day enactment, to have regard to how any former EU obligation is implemented elsewhere than in the United Kingdom.
2
In this paragraph—
“former EU obligation” means an obligation by which the United Kingdom is, as a result of the United Kingdom's withdrawal from the EU, no longer bound at the time of the review;
“F35pre-IP completion day enactment” means an Act passed, or subordinate legislation made, before F39IP completion day;
“subordinate legislation” does not include an instrument made under an Act of the Scottish Parliament, Northern Ireland legislation or a Measure or Act of the National Assembly for Wales.
Future powers to make subordinate legislation
F6710
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6811
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5411A
—
1
This paragraph applies to a power to make, confirm or approve subordinate legislation which is conferred—
a
on or after the day on which this Act is passed, and
b
before the day on which section 9 of the Retained EU Law (Revocation and Reform) Act 2023 comes into force.
2
The power is to be read, so far as the context permits or requires, as being capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct EU legislation or anything which is retained EU law by virtue of section 4.
3
But sub-paragraph (2) enables a power in retained direct minor EU legislation to be exercised to modify (or result in the modification of) any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4 only if—
a
the modification is—
i
consistent with any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4, and
ii
supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation, or
b
the power is a power to make, confirm or approve transitional, transitory or saving provision.
F5411B
—
1
This paragraph applies to a power to make, confirm or approve subordinate legislation which is conferred on or after the day on which section 9 of the Retained EU Law (Revocation and Reform) Act 2023 comes into force.
2
The power is to be read, so far as applicable and unless the contrary intention appears, as being capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct EU legislation or anything which is retained EU law by virtue of section 4.
3
But sub-paragraph (2) enables a power in retained direct minor EU legislation to be exercised to modify (or result in the modification of) any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4 only if—
a
the modification is—
i
consistent with any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4, and
ii
supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation, or
b
the power is a power to make, confirm or approve transitional, transitory or saving provision.
4
For the purposes of sub-paragraph (2), there is no contrary intention merely because a power is expressed as being capable of being exercised—
a
to modify all enactments or a particular category of enactments, or
b
to make a particular category of modifications to all enactments or to a particular category of enactments.
I46C2I2112
1
a
do not prevent the conferral of wider powers,
F42b
... and
c
are subject to any other provision made by or under this Act or any other enactment.
2
a
a power is conferred whether or not it is in force,
b
a power in retained direct EU legislation is conferred on or after the day on which this Act is passed, and
c
the references to powers conferred include powers conferred by regulations under this Act (but not powers conferred by this Act).
3
A power which, by virtue of paragraph 10 or 11 or any Act of Parliament passed after F9this Act and before IP completion day, is capable of being exercised to modify any retained EU law is capable of being so exercised before F44IP completion day so as to come into force on or after F44IP completion day.
F554
Sub-paragraph (5) applies in relation to a power if—
a
paragraph 11A applies in relation to the power, and
b
immediately before the coming into force of section 9 of the Retained EU Law (Revocation and Reform) Act 2023, and by virtue of a combination of provision in the power and paragraph 10 or 11 as it then had effect, the power was capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct EU legislation or anything which is retained EU law by virtue of section 4.
5
The continued existence of the provision in the power does not prevent the context from permitting or requiring the power to be read in accordance with paragraph 11A so far as the reading provided for by that paragraph is not provided for by the provision concerned (and, accordingly, the power continues to be capable of being exercised as mentioned in sub-paragraph (4) on and after the coming into force of section 9 of the Retained EU Law (Revocation and Reform) Act 2023).
F52...
Sch. 8 para. 13 cross-heading omitted (29.6.2023) by virtue of Retained EU Law (Revocation and Reform) Act 2023 (c. 28), ss. 10(1), 22(1)(d) (with s. 10(3))
F4913
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F53...
Sch. 8 para. 14 cross-heading omitted (29.6.2023) by virtue of Retained EU Law (Revocation and Reform) Act 2023 (c. 28), ss. 10(1), 22(1)(d) (with s. 10(3))
F5014
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Explanatory statements for instruments amending or revoking regulations etc. under section 2(2) of the ECA
F5115
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I2416
1
This paragraph applies where, on or after F20IP completion day—
a
a Scottish statutory instrument which amends or revokes any subordinate legislation made under section 2(2) of the European Communities Act 1972, or
b
a draft of such an instrument,
is to be laid before the Scottish Parliament.
2
Before the instrument or draft is laid, the relevant authority must make a statement as to why, in the opinion of the relevant authority, there are good reasons for the amendment or revocation.
3
Before the instrument or draft is laid, the relevant authority must make a statement otherwise explaining—
a
the law which is relevant to the amendment or revocation, and
b
the effect of the amendment or revocation on retained EU law.
4
If the relevant authority fails to make a statement required by sub-paragraph (2) or (3) before the instrument or draft is laid, the relevant authority must make a statement explaining why the relevant authority has failed to make the statement as so required.
5
A statement under sub-paragraph (2), (3) or (4) must be made in writing and be published in such manner as the relevant authority considers appropriate.
6
This paragraph applies in relation to instruments whether the power to make them is conferred before, on or after F14IP completion day including where the power is conferred by regulations under this Act (but not where it is conferred by this Act).
F587
The references in this paragraph to subordinate legislation made under section 2(2) of the European Communities Act 1972—
a
do not include references to any provision of such legislation which is made (whether or not by way of amendment) otherwise than under section 2(2) of that Act, and
b
do include references to subordinate legislation made otherwise than under section 2(2) of that Act so far as that legislation is amended by provision made under that section (but do not include references to any primary legislation so far as so amended).
8
In this paragraph “the relevant authority” means—
a
in the case of a Scottish statutory instrument which is not made by the Scottish Ministers, other than an Order in Council, the person who makes, or is to make, the instrument, and
b
in any other case, the Scottish Ministers.
F329
This paragraph does not apply where the amendment or revocation of subordinate legislation is for the purposes of—
a
the withdrawal agreement (other than Part 4 of that agreement),
b
the EEA EFTA separation agreement, F16...
c
the Swiss citizens' rights agreement F1, or
d
a future relationship agreement.
Part 2Specific consequential provision
Finance Act 1973
I3417
In section 56 of the Finance Act 1973 (charges for services etc. by Government departments), in subsection (1), omit “any EU obligation or”.
Interpretation Act 1978
I218
The Interpretation Act 1978 is amended as follows.
I3119
In section 21(1) (meaning of “subordinate legislation”) after “any Act” insert “ or made or to be made on or after exit day under any retained direct EU legislation F2other than retained direct EU CAP legislation as so defined ”
.
I320
After section 23 (application to other instruments) insert—
23ZARetained direct EU legislation
1
The provisions of this Act (except sections 1 to 4, 13 and 19(2)) apply, so far as applicable and unless the contrary intention appears, to any retained direct EU legislation so far as it—
a
is amended by an Act, subordinate legislation or devolution legislation, and
b
is not subordinate legislation,
as they apply to an Act passed at the corresponding time.
2
In their application by virtue of subsection (1)—
a
section 10 has effect as if the reference to the passing of the Act were a reference to the corresponding time,
b
section 11 has effect as if the second reference to an Act included a reference to the retained direct EU legislation so far as unamended (as well as a reference to that legislation so far as amended), and
c
section 16(1) has effect as if the reference to the repealing Act not being passed were a reference to the repeal not having been made.
3
References in this Act to the repeal of an enactment are to be read, in the case of an enactment which is retained direct EU legislation, as references to the revocation of the enactment.
4
In Schedule 1—
a
in the definition of “Commencement”, the references to an enactment do not include any retained direct EU legislation other than—
i
any such legislation to which subsection (1) applies, or
ii
any instrument made on or after exit day under any retained direct EU legislation, and
b
in the definitions of “The Corporation Tax Acts” and “The Income Tax Acts”, the references to an enactment do not include any retained direct EU legislation.
5
For the application of this Act to retained direct EU legislation which is subordinate legislation, see section 23(1) and (2).
6
In this section—
“corresponding time” means the time when the amending Act, subordinate legislation or devolution legislation was passed or (as the case may be) made, and
“devolution legislation” means—
- a
an Act of the Scottish Parliament,
- b
a Measure or Act of the National Assembly for Wales,
- c
Northern Ireland legislation (for the meaning of which see section 24(5)), or
- d
an instrument made under anything falling within paragraph (a), (b) or (c).
I1321
In section 24 (application to Northern Ireland), in subsection (4)—
a
omit “and related expressions”,
b
after “Corporation Tax Acts;” insert—
E.C.S.C. Treaty;
E.E.C. Treaty;
c
after “state;” insert—
Entry date;
The EU or the European Union;
EU institution;
EU instrument;
Euratom, Economic Community and Coal and Steel Community;
Euratom Treaty;
European Court;
d
after “Income Tax Acts;” insert— “
Member (in the expression “member State”);
”
, and
e
after “The Tax Acts” insert
;
The Treaties or the EU Treaties
I422
In Schedule 1 (words and expressions defined)—
I37a
omit “ “The EU” or “the EU Treaties” and other expressions defined by section 1 of and Schedule 1 to the European Communities Act 1972 have the meanings prescribed by that Act.”,
b
omit the definition of “EEA agreement”,
c
omit the definition of “EEA state”,
I18d
in the definition of “enactment”, before “does” insert “
includes any retained direct EU legislation but
”
, and
e
at the end insert—
Definitions relating to the EU and the United Kingdom's withdrawal
“The Communities” means Euratom, the Economic Community and the Coal and Steel Community, but a reference to any or all of those Communities is to be treated as being or including (as the context requires) a reference to the EU.
“E.C.S.C. Treaty” means the Treaty establishing the European Coal and Steel Community, signed at Paris on 18 April 1951.
“EEA agreement” means the agreement on the European Economic Area signed at Oporto on 2 May 1992, together with the Protocol adjusting that Agreement signed at Brussels on 17 March 1993, as modified or supplemented from time to time, but does not include any retained direct EU legislation. [8 January 2007]
“EEA state”, in relation to a time, means—
- a
a state which at that time is a member State, or
- b
any other state which at that time is a party to the EEA agreement. [8 January 2007]
“E.E.C. Treaty” means the Treaty establishing the European Economic Community, signed at Rome on 25 March 1957.
“Entry date” means the date on which the United Kingdom became a member of the Communities (which neither includes nor is a reference to the EU).
“The EU” or “the European Union” means the European Union, being the Union established by the Treaty on European Union signed at Maastricht on 7 February 1992 (as amended by any later Treaty); and includes, so far as the context permits or requires, Euratom.
“EU institution” means any institution of the EU.
“EU instrument” means any instrument issued by an EU institution other than any retained direct EU legislation.
“Euratom”, “Economic Community” and “Coal and Steel Community” mean respectively the European Atomic Energy Community, the European Economic Community and the European Coal and Steel Community (but see the definition of “the Communities” for provision as to the construction of references to those Communities).
“Euratom Treaty” means the Treaty establishing the European Atomic Energy Community, signed at Rome on 25 March 1957.
“European Court” means the Court of Justice of the European Union.
“Exit day” (and related expressions) have the same meaning as in the European Union (Withdrawal) Act 2018 (see section 20(1) to (5) of that Act).
“Member”, in the expression “member State”, refers to membership of the EU.
“Retained EU law”, “retained direct minor EU legislation”, “retained direct principal EU legislation” and “retained direct EU legislation” have the same meaning as in the European Union (Withdrawal) Act 2018 (see sections 6(7), 7(6) and 20(1) of that Act).
“Retained EU obligation” means an obligation that—
- a
was created or arose by or under the EU Treaties before exit day, and
- b
forms part of retained EU law,
as modified from time to time.
“The Treaties” or “the EU Treaties” means the Treaties or EU Treaties, within the meaning given by section 1(2) of the European Communities Act 1972 as that Act had effect immediately before its repeal by section 1 of the European Union (Withdrawal) Act 2018, as at immediately before exit day.
European Economic Area Act 1993
I1523
The European Economic Area Act 1993 is amended as follows.
I1124
Omit section 1 (EEA agreement to be an EU Treaty).
I2725
1
Section 2 (consistent application of law to the whole of the EEA) is amended as follows.
2
In subsection (3)—
a
in paragraph (a), after “Act” insert “
as at immediately before exit day
”
, and
b
omit paragraph (b), the “or” before that paragraph and the words after that paragraph.
3
After that subsection insert—
3A
This section is subject to any amendment, repeal, revocation or other modification of retained EU law on or after exit day.
4
Omit subsections (4) to (6).
I1726
1
Section 3 (general implementation of the EEA agreement) is amended as follows.
2
In subsection (3)—
a
in paragraph (a), after “Act” insert “
as at immediately before exit day
”
, and
b
omit paragraph (b), the “or” before that paragraph and the words after that paragraph.
3
After subsection (4) insert—
4A
This section is subject to any amendment, repeal, revocation or other modification of retained EU law on or after exit day.
I4127
Omit section 4 (modification of section 3 of the European Communities Act 1972).
I1228
In section 6 (interpretation), in subsection (1), in the definition of “the 1972 Act”, after “1972” insert (before its repeal by section 1 of the European Union (Withdrawal) Act 2018)”.
Criminal Procedure (Scotland) Act 1995
I3629
1
Section 288ZA of the Criminal Procedure (Scotland) Act 1995 (right of Advocate General to take part in proceedings) is amended as follows.
F282
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In subsection (3), omit paragraph (c).
Human Rights Act 1998
I3830
1
This paragraph has effect for the purposes of the Human Rights Act 1998.
2
Any retained direct principal EU legislation is to be treated as primary legislation.
3
Any retained direct minor EU legislation is to be treated as primary legislation so far as it amends any primary legislation but otherwise is to be treated as subordinate legislation.
4
In this paragraph “amend”, “primary legislation” and “subordinate legislation” have the same meaning as in the Human Rights Act 1998.
Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)
I531
The Interpretation and Legislative Reform (Scotland) Act 2010 is amended as follows.
I632
1
Section 1 (application of Part 1 of the Act) is amended as follows.
2
In subsection (1)—
a
in paragraph (b), after “day” insert “
, in the case of Scottish instruments made as mentioned in paragraph (a) or (b) of the definition of “Scottish instrument” in subsection (4),
”
, and
b
after paragraph (b) (but before the “and” at the end of that paragraph) insert—
ba
Scottish instruments made on or after exit day, in the case of Scottish instruments made as mentioned in paragraph (c) or (d) of the definition of “Scottish instrument” in subsection (4),
3
In subsection (4)—
a
omit the “or” at the end of paragraph (a), and
b
after paragraph (b) insert—
c
an Act of the Scottish Parliament (whenever passed) and any retained direct EU legislation (whenever made), or
d
an Act of the Scottish Parliament and an Act of Parliament (in each case, whenever passed) and any retained direct EU legislation (whenever made).
4
After subsection (9) insert—
10
In this section “exit day” (and related expressions) and “retained direct EU legislation” have the same meaning as in the European Union (Withdrawal) Act 2018 (see section 20(1) to (5) of that Act).
I733
In section 30 (other instruments laid before the Scottish Parliament), after subsection (6), insert—
7
This section does not apply in relation to any regulations made in accordance with paragraph 6 of Schedule 7 to the European Union (Withdrawal) Act 2018 (including that paragraph as applied by paragraph 19(7) of that Schedule).
I834
In section 37 (interpretation of Part 2 of the Act)—
a
in the definition of “enactment”, at the end insert “
and any retained direct EU legislation
”
,
b
after that definition insert—
“retained direct EU legislation” has the same meaning as in the European Union (Withdrawal) Act 2018 (see section 20(1) of that Act),
c
at the end insert—
“subordinate legislation” includes an instrument made or to be made under any retained direct EU legislation on or after exit day (within the meaning of the European Union (Withdrawal) Act 2018 (see section 20(1) to (5) of that Act)).
I3235
In Schedule 1 (definitions of words and expressions)—
a
omit from “the EU” to “meanings given by that Act”, and
b
at the end insert—
Definitions relating to the EU
“The Communities” means Euratom, the Economic Community and the Coal and Steel Community, but a reference to any or all of those Communities is to be treated as being or including (as the context requires) a reference to the EU.
“E.C.S.C. Treaty” means the Treaty establishing the European Coal and Steel Community, signed at Paris on 18 April 1951.
“E.E.C. Treaty” means the Treaty establishing the European Economic Community, signed at Rome on 25 March 1957.
“Entry date” means the date on which the United Kingdom became a member of the Communities (which neither includes nor is a reference to the EU).
“The EU” or “the European Union” means the European Union, being the Union established by the Treaty on European Union signed at Maastricht on 7 February 1992 (as amended by any later Treaty); and includes, so far as the context permits or requires, Euratom.
“EU institution” means any institution of the EU.
“EU instrument” means any instrument issued by an EU institution other than any retained direct EU legislation (within the meaning of the European Union (Withdrawal) Act 2018 (see section 20(1) of that Act)).
“Euratom”, “Economic Community” and “Coal and Steel Community” mean respectively the European Atomic Energy Community, the European Economic Community and the European Coal and Steel Community (but see the definition of “the Communities” for provision as to the construction of references to those Communities).
“Euratom Treaty” means the Treaty establishing the European Atomic Energy Community, signed at Rome on 25 March 1957.
“European Court” means the Court of Justice of the European Union.
“Member”, in the expression “member State”, refers to membership of the EU.
“The Treaties” or “the EU Treaties” means the Treaties or EU Treaties, within the meaning given by section 1(2) of the European Communities Act 1972 as that Act had effect immediately before its repeal by section 1 of the European Union (Withdrawal) Act 2018, as at immediately before exit day (within the meaning of that Act (see section 20(1) to (5) of that Act)).
Small Business, Enterprise and Employment Act 2015
I936
In section 30 of the Small Business, Enterprise and Employment Act 2015 (meaning of “provision for review”), in subsection (3)—
a
omit “EU obligation or any other”, and
b
omit “Member States or”.
Part 3General transitional, transitory or saving provision
Continuation of existing acts etc.
I29F3836A
1
Anything done—
a
in connection with anything which continues to be domestic law by virtue of section 1A(2) or 1B(2), or
b
for a purpose mentioned in section 2(2)(a) or (b) of the European Communities Act 1972 or otherwise related to the EU or the EEA,
if in force or effective immediately before exit day, continues to be in force or effective on and after exit day.
2
Anything done—
a
in connection with anything which continues to be domestic law by virtue of section 1A(2) or 1B(2), or
b
for a purpose mentioned in section 2(2)(a) or (b) of the European Communities Act 1972 or otherwise related to the EU or the EEA,
which, immediately before exit day, is in the process of being done continues to be done on and after exit day.
3
Sub-paragraphs (1) and (2) are subject to—
a
sections 1 to 1B and the withdrawal of the United Kingdom from the EU,
b
any provision made under section 23(6) of this Act or section 41(5) of the European Union (Withdrawal Agreement) Act 2020, and
c
any other provision made by or under this Act, the European Union (Withdrawal Agreement) Act 2020 or any other enactment.
4
References in this paragraph to anything done include references to anything omitted to be done.
I3037
C11
Anything done—
a
in connection with anything which continues to be, or forms part of, domestic law by virtue of section 2, 3, 4 or 6(3) or (6), or
b
for a purpose mentioned in section 2(2)(a) or (b) of the European Communities Act 1972 or otherwise related to the EU or the EEA,
if in force or effective immediately before F17IP completion day, continues to be in force or effective on and after exit day.
2
Anything done—
a
in connection with anything which continues to be, or forms part of, domestic law by virtue of section 2, 3, 4 or 6(3) or (6), or
b
for a purpose mentioned in section 2(2)(a) or (b) of the European Communities Act 1972 or otherwise related to the EU or the EEA,
which, immediately before exit day, is in the process of being done continues to be done on and after F22IP completion day.
3
Sub-paragraphs (1) and (2) are subject to—
a
F43sections 1 to 1B and the withdrawal of the United Kingdom from the EU,
b
sections 2 to F37C and Schedule 1,
c
any provision made under section 23(6) F10of this Act or section 41(5) of the European Union (Withdrawal Agreement) Act 2020, and
d
any other provision made by or under this Act F48, the European Union (Withdrawal Agreement) Act 2020 or any other enactment.
4
References in this paragraph to anything done include references to anything omitted to be done.
Part 4Specific transitional, transitory and saving provision
Retention of F31saved EU law at end of implementation period
Words in Sch. 8 para. 38 cross-heading substituted (31.12.2020) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(7), Sch. 5 para. 56(2) (with s. 38(3), Sch. 5 para. 66); S.I. 2020/1622, reg. 5(j)
F2337A
The repeal of section 1A(1) to (4) by section 1A(5) and the repeal of section 1B(1) to (5) by section 1B(6) do not prevent an enactment to which section 2 applies from continuing to be read, on and after IP completion day and by virtue of section 2, in accordance with section 1B(3) or (4).
I1938
Section 4(2)(b) does not apply in relation to any rights, powers, liabilities, obligations, restrictions, remedies or procedures so far as they are of a kind recognised by a court or tribunal in the United Kingdom in a case decided on or after F29IP completion day but begun before F29IP completion day (whether or not as an essential part of the decision in the case).
I3939
1
Subject as follows and subject to F19relevant separation agreement law (for which see section 7C) and any provision made by regulations under section 23(6) F40of this Act or section 41(5) of the European Union (Withdrawal Agreement) Act 2020, section 5(4) and paragraphs 1 to 4 of Schedule 1 apply in relation to anything occurring before F15IP completion day (as well as anything occurring on or after F15IP completion day).
2
Section 5(4) and paragraphs 1 to 4 of Schedule 1 do not affect any decision of a court or tribunal made before F15IP completion day.
3
Section 5(4) and paragraphs 3 and 4 of Schedule 1 do not apply in relation to any proceedings begun, but not finally decided, before a court or tribunal in the United Kingdom before F15IP completion day.
4
Paragraphs 1 to 4 of Schedule 1 do not apply in relation to any conduct which occurred before F15IP completion day which gives rise to any criminal liability.
5
Paragraph 3 of Schedule 1 does not apply in relation to any proceedings begun within the period of three years beginning with F15IP completion day so far as—
a
the proceedings involve a challenge to anything which occurred before F15IP completion day, and
b
the challenge is not for the disapplication or quashing of—
i
an Act of Parliament or a rule of law which is not an enactment, or
ii
any enactment, or anything else, not falling within sub-paragraph (i) which, as a result of anything falling within that sub-paragraph, could not have been different or which gives effect to, or enforces, anything falling within that sub-paragraph.
6
Paragraph 3(2) of Schedule 1 does not apply in relation to any decision of a court or tribunal, or other public authority, on or after F15IP completion day which is a necessary consequence of any decision of a court or tribunal made before F15IP completion day or made on or after that day by virtue of this paragraph.
7
Main powers in connection with withdrawal
I1040
The prohibition on making regulations under section F86(5A), 8, F258AF26... or 23(1) or F24Part 1 or 1A of Schedule 2 after a particular time does not affect the continuation in force of regulations made at or before that time (including the exercise after that time of any power conferred by regulations made at or before that time).
Devolution
I141
I281
The amendments made by section 12 and Part 1 of Schedule 3 do not affect the validity of—
a
any provision of an Act of the Scottish Parliament, Act of the National Assembly for Wales or Act of the Northern Ireland Assembly made before F33IP completion day,
b
any subordinate legislation which is subject to confirmation or approval and is made and confirmed or approved before F33IP completion day, or
c
any other subordinate legislation made before F33IP completion day.
I282
Accordingly and subject to sub-paragraphs (3) to (10), the validity of anything falling within sub-paragraph (1)(a), (b) or (c) is to be decided by reference to the law before F33IP completion day.
I223
Section 29(2)(d) of the Scotland Act 1998, so far as relating to EU law, does not apply to any provision of an Act of the Scottish Parliament made before F33IP completion day if the provision—
a
comes into force on or after F33IP completion day or comes into force before that day and is a power to make, confirm or approve subordinate legislation, and
b
is made when there are no regulations under section 30A of the Scotland Act 1998 by virtue of which the provision would be in breach of the restriction in subsection (1) of that section when the provision comes into force (or, in the case of a provision which comes into force before F33IP completion day, on or after F33IP completion day) if the provision were made and the regulations were in force at that time.
I224
Section 108A(2)(e) of the Government of Wales Act 2006, so far as relating to EU law, does not apply to any provision of an Act of the National Assembly for Wales made before F33IP completion day if the provision—
a
comes into force on or after F33IP completion day or comes into force before that day and is a power to make, confirm or approve subordinate legislation, and
b
is made when there are no regulations under section 109A of the Government of Wales Act 2006 by virtue of which the provision would be in breach of the restriction in subsection (1) of that section when the provision comes into force (or, in the case of a provision which comes into force before F33IP completion day, on or after F33IP completion day) if the provision were made and the regulations were in force at that time.
I225
Section 6(2)(d) of the Northern Ireland Act 1998, so far as relating to EU law, does not apply to any provision of an Act of the Northern Ireland Assembly made before F33IP completion day if the provision—
a
comes into force on or after F33IP completion day or comes into force before that day and is a power to make, confirm or approve subordinate legislation, and
b
is made when there are no regulations under section 6A of the Northern Ireland Act 1998 by virtue of which the provision would be in breach of the restriction in subsection (1) of that section when the provision comes into force (or, in the case of a provision which comes into force before F33IP completion day, on or after F33IP completion day) if the provision were made and the regulations were in force at that time.
I226
Section 57(2) of the Scotland Act 1998, so far as relating to EU law, does not apply to the making, confirming or approving before F33IP completion day of any subordinate legislation if the legislation—
a
comes into force on or after F33IP completion day, and
b
is made, confirmed or approved when there are no regulations under subsection (4) of section 57 of the Scotland Act 1998 by virtue of which the making, confirming or approving would be in breach of the restriction in that subsection when the legislation comes into force if—
i
the making, confirming or approving had occurred at that time,
ii
in the case of legislation confirmed or approved, the legislation was made at that time, and
iii
the regulations were in force at that time.
I227
Section 80(8) of the Government of Wales Act 2006, so far as relating to EU law, does not apply to the making, confirming or approving before F33IP completion day of any subordinate legislation if the legislation—
a
comes into force on or after F33IP completion day, and
b
is made, confirmed or approved when there are no regulations under subsection (8) of section 80 of the Government of Wales Act 2006 by virtue of which the making, confirming or approving would be in breach of the restriction in that subsection, so far as relating to retained EU law, when the legislation comes into force if—
i
the making, confirming or approving had occurred at that time,
ii
in the case of legislation confirmed or approved, the legislation was made at that time, and
iii
the regulations were in force at that time.
I228
Section 24(1)(b) of the Northern Ireland Act 1998, so far as relating to EU law, does not apply to the making, confirming or approving before F33IP completion day of any subordinate legislation if the legislation—
a
comes into force on or after F33IP completion day, and
b
is made, confirmed or approved when there are no regulations under subsection (3) of section 24 of the Northern Ireland Act 1998 by virtue of which the making, confirming or approving would be in breach of the restriction in that subsection when the legislation comes into force if—
i
the making, confirming or approving had occurred at that time,
ii
in the case of legislation confirmed or approved, the legislation was made at that time, and
iii
the regulations were in force at that time.
I229
For the purposes of sub-paragraphs (3) to (8) assume that the restrictions relating to retained EU law in—
a
sections 30A(1) and 57(4) of the Scotland Act 1998,
b
sections 80(8) and 109A(1) of the Government of Wales Act 2006, and
c
sections 6A(1) and 24(3) of the Northern Ireland Act 1998,
come into force on F33IP completion day.
10
a
the making of regulations before exit day under Part 1A of Schedule 2, or
b
the making of regulations under—
i
Part 1B or 1C of Schedule 2, or
ii
Schedule 4.
I4042
The amendments made by Part 1 of Schedule 3 do not affect the validity of any act (other than the making, confirming or approving of subordinate legislation) done before F27IP completion day by a member of the Scottish Government, the Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Government, a Northern Ireland Minister, the First Minister in Northern Ireland, the deputy First Minister in Northern Ireland or a Northern Ireland department.
F743
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other provision
44
1
The definition of “relevant criminal offence” in section 20(1) is to be read, until the appointed day, as if for the words “the age of 18 (or, in relation to Scotland or Northern Ireland, 21)” there were substituted “
the age of 21
”
.
2
In sub-paragraph (1), “the appointed day” means the day on which the amendment made to section 81(3)(a) of the Regulation of Investigatory Powers Act 2000 by paragraph 211 of Schedule 7 to the Criminal Justice and Court Services Act 2000 comes into force.
I2645
1
The amendment made by paragraph 17 does not affect whether the payment of any fees or other charges may be required under section 56 of the Finance Act 1973 in connection with a service or facilities provided, or an authorisation, certificate or other document issued, before that amendment comes into force.
2
Sub-paragraph (3) applies where—
a
immediately before the amendment made by paragraph 17 comes into force, the payment of fees or other charges could be required, under section 56 of the Finance Act 1973, in connection with the provision of a service or facilities, or issuing an authorisation, certificate or other document, in pursuance of an EU obligation, and
b
after the amendment made by paragraph 17 comes into force—
i
regulations made under that section (whether or not modified under Part 2 of Schedule 4 or otherwise) prescribing the fees or charges, or under which the fees or charges are to be determined, form part of retained EU law, and
ii
the service or facilities are provided, or the authorisation, certificate or other document is issued, under or in connection with retained EU law.
3
Despite the amendment made by paragraph 17, the payment of fees or other charges may be required, under that section and in accordance with the regulations, in connection with the provision of the service or facilities, or the issuing of the authorisation, certificate or other document.
Sch. 8 para. 1A and cross-heading inserted (31.12.2020) by The European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020 (S.I. 2020/1447), regs. 1(3), 3(2)(b)