Schedule 6: Consequential and transitional provision etc.
Part 1: Consequential Provision
Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Act 2006
- Paragraph 1 makes a consequential amendment to the (currently uncommenced) subsection 57(5) of the Scotland Act 1998 to include the section 31 implementation power, the section 32 powers relating to the start of agreements and the section 33 powers relating to the functioning of agreements in the list of exemptions from the (currently uncommenced) subsection 57(4) restrictions on executive competence.
- The amendments to introduce subsection 57(4) and (5) were introduced by Schedule 3 of the European Union (Withdrawal) Act 2018 and will be brought into force by commencement regulations at the end of the transition period.
- These amendment in this paragraph to these provisions would mean that in the event that regulations were made under the new section 57(4) power to restrict devolved executive competence to modify certain areas of retained EU law then the Scottish Government would nonetheless still be able to use the powers in this Act as necessary to implement or deal with certain other matters relating to the Agreements.
- Paragraphs 2 and 3 make equivalent provision to the Northern Ireland Act 1998 and Government of Wales Act 2006 respectively.
Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10)
- Paragraph 4 contains an amendment to section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010 to to reflect the urgency procedure applicable to certain regulations that could be made by Scottish Ministers under this Act.
European Union (Withdrawal) Act 2018
- Paragraph 5 introduces a set of amendments to the EU (Withdrawal) Act 2018 in the subsequent paragraphs.
- Paragraph 6 amends section (20)(1) (interpretation) of the EU (Withdrawal) Act 2018 and inserts a definition of ‘future relationship agreement’, providing that the term has the same meaning as in this Act.
- In light of the inclusion of that term by paragraph 6, paragraph 7 amends section 21(1) (index of defined expressions) of the EU (Withdrawal) Act 2018 to include the definition of ‘future relationship agreement’ within the index of defined expressions in that Act.
- Paragraph 8 amends Part 1 of Schedule 8 (general consequential provision) of the EU (Withdrawal) Act 2018. Part 1 of Schedule 8 provides for enhanced procedural requirements for any statutory instrument that amends or revokes subordinate legislation made under powers conferred by section 2(2) of the European Communities Act 1972. This includes requiring such instruments to be subject to the affirmative procedure in Parliament, other enhanced scrutiny procedures or making explanatory statements. Exemptions from the procedural requirements are listed in Schedule 8 of the EU (Withdrawal) Act 2018. Paragraph 8 adds to that list, exempting instruments made for the purposes of implementing the Agreements from the enhanced procedural requirements.
Part 2: Transitional, Transitory and Saving Provision
Passenger name record data
- This provision provides that the amendments made by Schedule 2 do not have any effect in relation to PNR data, or the results of processing that data, received by the Passenger Information Unit (PIU) by virtue of the PNR Directive before the end of the Transition Period, or any PNR data received as a result of cases which are "in-flight" at the end of the Transition Period (that is, where the request was received for the PNR data before the end of the Transition Period).
- Such data will be dealt with in accordance with the transitional provision provided for in regulations 106A and 106B of the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (as inserted by Regulation 31 of the Law Enforcement and Security (Separation Issues etc.) (EU Exit) Regulations 2020), as required under the Withdrawal Agreement.
Extradition
- Under the terms of the Withdrawal Agreement, where a person has been arrested pursuant to a European Arrest Warrant before the end of the Transition Period, their case should continue to completion under the provisions of the European Arrest Warrant Framework Decision. Paragraph 10 ensures that where a person has been arrested on this basis, the amendments to the dual criminality provisions made in this Act do not apply to their extradition case but remain as provided under the provisions of the European Arrest Warrant Framework Decision.
"relevant criminal offence"
- Section 37 of the Act defines "relevant criminal offence". That definition corresponds to provisions made in section 81(3)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA) as they are to be amended by paragraph 211 of Schedule 7 of the Criminal Justice and Court Services Act 2000. Those amendments have yet to come into force. Paragraph 11 modifies the definition of "relevant criminal offence", ensuring that it reflects the operation of RIPA until such time as the corresponding amendments in RIPA take effect.
Powers of devolved authorities in relation to EU law
- Paragraph 12 provides that the restrictions on the devolved administrations making secondary legislation that is incompatible with EU law found in section 57(2) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 and section 24(1)(b) of the Northern Ireland Act 1998 do not apply to regulations made under the section 31 implementation power, the section 32 powers relating to the start of agreements, or the section 33 powers relating to the functioning of agreements.
Modifications of subordinate legislation
- Paragraph 13 makes clear that the modification of subordinate legislation made by this Act does not prevent the subordinate legislation as modified from being further modified by the power under which it was made or by other subordinate legislation.
