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European Union (Withdrawal) Act 2018

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Changes over time for: Cross Heading: Existing powers to make subordinate legislation etc.

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European Union (Withdrawal) Act 2018, Cross Heading: Existing powers to make subordinate legislation etc. is up to date with all changes known to be in force on or before 08 August 2020. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Existing powers to make subordinate legislation etc.U.K.

3(1)Any power to make, confirm or approve subordinate legislation which—U.K.

(a)was conferred before the day on which this Act is passed, and

(b)is capable of being exercised to amend or repeal (or, as the case may be, result in the amendment or repeal of) an enactment contained in primary legislation,

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.

(2)But sub-paragraph (1) does not apply if the power to make, confirm or approve subordinate legislation is only capable of being exercised to amend or repeal (or, as the case may be, result in the amendment or repeal of) an enactment contained in Northern Ireland legislation which is an Order in Council.

Modifications etc. (not altering text)

C1Sch. 8 paras. 3-8 applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I1Sch. 8 para. 3 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

4(1)Any subordinate legislation which—U.K.

(a)is, or is to be, made, confirmed or approved by virtue of paragraph 3, and

(b)amends or revokes any retained direct principal EU legislation,

is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were amending or repealing an enactment contained in primary legislation.

(2)Any subordinate legislation which—

(a)is, or is to be, made, confirmed or approved by virtue of paragraph 3, and

(b)either—

(i)modifies (otherwise than as a connected modification and otherwise than by way of amending or revoking it) any retained direct principal EU legislation, or

(ii)modifies (otherwise than as a connected modification) anything which is retained EU law by virtue of section 4,

is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were amending or repealing an enactment contained in primary legislation.

(3)Any subordinate legislation which—

(a)is, or is to be, made, confirmed or approved by virtue of paragraph 3, and

(b)amends or revokes any retained direct minor EU legislation,

is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales 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.

(4)Any subordinate legislation which—

(a)is, or is to be, made, confirmed or approved by virtue of paragraph 3, and

(b)modifies (otherwise than as a connected modification and otherwise than by way of amending or revoking it) any retained direct minor EU legislation,

is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales 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.

(5)Any subordinate legislation which—

(a)is, or is to be, made, confirmed or approved by virtue of paragraph 3, and

(b)modifies as a connected modification any retained direct EU legislation or anything which is retained EU law by virtue of section 4,

is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to the modification to which it is connected.

(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)The references in this paragraph to amending or repealing an enactment contained in primary legislation or amending or revoking an enactment contained in subordinate legislation do not include references to amending or repealing or (as the case may be) amending or revoking an enactment contained in any Northern Ireland legislation which is an Order in Council.

(10)In this paragraph “connected modification” means a modification which is supplementary, incidental, consequential, transitional or transitory, or a saving, in connection with—

(a)another modification under the power of retained direct EU legislation or anything which is retained EU law by virtue of section 4, or

(b)anything else done under the power.

Modifications etc. (not altering text)

C1Sch. 8 paras. 3-8 applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I2Sch. 8 para. 4 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

5(1)This paragraph applies to any power to make, confirm or approve subordinate legislation—U.K.

(a)which was conferred before the day on which this Act is passed, and

(b)is not capable of being exercised as mentioned in paragraph 3(1)(b) or is only capable of being so exercised in relation to Northern Ireland legislation which is an Order in Council.

(2)Any power to which this paragraph applies (other than a power to which sub-paragraph (4) applies) is to be read—

(a)so far as is consistent with any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4, and

(b)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 minor EU legislation.

(3)Any power to which this paragraph applies (other than a power to which sub-paragraph (4) applies) 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)—

(a)any retained direct principal EU legislation, or

(b)anything which is retained EU law by virtue of section 4,

so far as the modification is supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation by virtue of sub-paragraph (2).

(4)Any power to which this paragraph applies so far as it is a power to make, confirm or approve transitional, transitory or saving provision 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)—

(a)any retained direct EU legislation, or

(b)anything which is retained EU law by virtue of section 4.

Modifications etc. (not altering text)

C1Sch. 8 paras. 3-8 applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I3Sch. 8 para. 5 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

6U.K.Any subordinate legislation which is, or is to be, made, confirmed or approved by virtue of paragraph 5(2), (3) or (4) is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were doing anything else under the power.

Modifications etc. (not altering text)

C1Sch. 8 paras. 3-8 applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I4Sch. 8 para. 6 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

[F17U.K.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.]

Textual Amendments

Modifications etc. (not altering text)

C1Sch. 8 paras. 3-8 applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I5Sch. 8 para. 7 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

8(1)Paragraphs 3 to 7 and this paragraph—U.K.

(a)do not prevent the conferral of wider powers,

(b)do not apply so far as section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or section 24(3) of the Northern Ireland Act 1998 applies (or would apply when in force on and after [F2IP completion day]), 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 [F3IP completion day] so as to come into force on or after [F3IP completion day].

Textual Amendments

F2Words in Sch. 8 para. 8(1)(b) substituted (30.1.2020 for specified purposes, 31.1.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(7), Sch. 5 para. 54(5)(a) (with s. 38(3), Sch. 5 para. 66); 2020 c. 2, s. 2(11)(c); S.I. 2020/75, reg. 4(n)(xxv)

F3Words in Sch. 8 para. 8(3) substituted (30.1.2020 for specified purposes, 31.1.2020 in so far as not already in force) by European Union (Withdrawal Agreement) Act 2020 (c. 1), s. 42(7), Sch. 5 para. 54(5)(b) (with s. 38(3), Sch. 5 para. 66); 2020 c. 2, s. 2(11)(c); S.I. 2020/75, reg. 4(n)(xxv)

Modifications etc. (not altering text)

C1Sch. 8 paras. 3-8 applied (with modifications) (30.1.2020) by Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2), ss. 2(3)-(5), 9(3)

Commencement Information

I6Sch. 8 para. 8 in force at 30.1.2020 for specified purposes by 2020 c. 2, s. 2(11)(a)(b)

I7Sch. 8 para. 8 in force at 31.1.2020 in so far as not already in force by S.I. 2020/74, reg. 2(c)(i)

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