SCHEDULE 1Restrictions on devolved authorities
No power to make provision outside devolved competence
1
(1)
No provision may be made by a devolved authority under section 1(1) or 2(1) unless the provision is within the devolved competence of the devolved authority.
(2)
See paragraphs 6 to 8 for the meaning of “devolved competence”.
Requirement for consultation in certain circumstances
2
(1)
No regulations may be made by a devolved authority acting alone under section 2(1) so far as the regulations are to come into force before IP completion day, unless the regulations are, to that extent, made after consulting with a Minister of the Crown.
(2)
No regulations may be made by a devolved authority acting alone under section 2(1) so far as the regulations make provision about any quota arrangements or are incompatible with any such arrangements, unless the regulations are, to that extent, made after consulting with a Minister of the Crown.
(3)
In sub-paragraph (2) “quota arrangements” means any arrangements for, or in connection with, the division of responsibility within the United Kingdom or an area including the United Kingdom for—
(a)
an international obligation, or
(b)
any right or other benefit arising from such an obligation,
where the obligation is to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise) or (as the case may be) the benefit is so defined.
Requirement for consent where it would otherwise be required
3
(1)
The consent of a Minister of the Crown is required before any provision is made by the Welsh Ministers acting alone in regulations under section 1(1) or 2(1) so far as that provision, if contained in an Act of Senedd Cymru, would require the consent of a Minister of the Crown.
(2)
The consent of the Secretary of State is required before any provision is made by a Northern Ireland department acting alone in regulations under section 1(1) or 2(1) so far as that provision, if contained in an Act of the Northern Ireland Assembly, would require the consent of the Secretary of State.
(3)
Sub-paragraph (1) or (2) does not apply if—
(a)
the provision could be contained in subordinate legislation made otherwise than under this Act by the Welsh Ministers acting alone or (as the case may be) a Northern Ireland devolved authority acting alone, and
(b)
no such consent would be required in that case.
(4)
The consent of a Minister of the Crown is required before any provision is made by a devolved authority acting alone in regulations under section 1(1) or 2(1) so far as that provision, if contained in—
(a)
subordinate legislation made otherwise than under this Act by the devolved authority, or
(b)
subordinate legislation not falling within paragraph (a) and made otherwise than under this Act by (in the case of Scotland) the First Minister or Lord Advocate acting alone or (in the case of Northern Ireland) a Northern Ireland devolved authority acting alone,
would require the consent of a Minister of the Crown.
(5)
Sub-paragraph (4) does not apply if—
(a)
the provision could be contained in—
(i)
an Act of the Scottish Parliament, an Act of Senedd Cymru or (as the case may be) an Act of the Northern Ireland Assembly, or
(ii)
different subordinate legislation of the kind mentioned in sub-paragraph (4)(a) or (b), and
(b)
the consent of a Minister of the Crown would not be required in that case.
Requirement for joint exercise where it would otherwise be required
4
(1)
No regulations may be made under section 1(1) or 2(1) by the Scottish Ministers, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by—
(a)
the Scottish Ministers acting jointly with a Minister of the Crown, or
(b)
the First Minister or Lord Advocate acting jointly with a Minister of the Crown,
unless the regulations are, to that extent, made jointly with the Minister of the Crown.
(2)
No regulations may be made under section 1(1) or 2(1) by the Welsh Ministers, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Welsh Ministers acting jointly with a Minister of the Crown, unless the regulations are, to that extent, made jointly with the Minister of the Crown.
(3)
No regulations may be made under section 1(1) or 2(1) by a Northern Ireland department, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by—
(a)
a Northern Ireland department acting jointly with a Minister of the Crown, or
(b)
another Northern Ireland devolved authority acting jointly with a Minister of the Crown,
unless the regulations are, to that extent, made jointly with the Minister of the Crown.
(4)
Sub-paragraph (1), (2) or (3) does not apply if the provision could be contained in—
(a)
an Act of the Scottish Parliament, an Act of Senedd Cymru or (as the case may be) an Act of the Northern Ireland Assembly without the need for the consent of a Minister of the Crown, or
(b)
different subordinate legislation made otherwise than under this Act by—
(i)
the Scottish Ministers, the First Minister or the Lord Advocate acting alone,
(ii)
the Welsh Ministers acting alone, or
(iii)
(as the case may be), a Northern Ireland devolved authority acting alone.
Requirement for consultation where it would otherwise be required
5
(1)
No regulations may be made under section 1(1) or 2(1) by the Welsh Ministers acting alone, so far as they contain provision which, if contained in an Act of Senedd Cymru, would require consultation with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.
(2)
No regulations may be made under section 1(1) or 2(1) by the Scottish Ministers acting alone, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Scottish Ministers, the First Minister or the Lord Advocate after consulting with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.
(3)
No regulations may be made under section 1(1) or 2(1) by the Welsh Ministers acting alone, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by the Welsh Ministers after consulting with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.
(4)
No regulations may be made under section 1(1) or 2(1) by a Northern Ireland department acting alone, so far as they contain provision which relates to a matter in respect of which a power to make subordinate legislation otherwise than under this Act is exercisable by a Northern Ireland devolved authority after consulting with a Minister of the Crown, unless the regulations are, to that extent, made after consulting with the Minister of the Crown.
(5)
Sub-paragraph (2), (3) or (4) does not apply if—
(a)
the provision could be contained in an Act of the Scottish Parliament, an Act of Senedd Cymru or (as the case may be) an Act of the Northern Ireland Assembly, and
(b)
there would be no requirement for the consent of a Minister of the Crown, or for consultation with a Minister of the Crown, in that case.
(6)
Sub-paragraph (2), (3) or (4) does not apply if—
(a)
the provision could be contained in different subordinate legislation made otherwise than under this Act by—
(i)
the Scottish Ministers, the First Minister or the Lord Advocate acting alone,
(ii)
the Welsh Ministers acting alone, or
(iii)
(as the case may be), a Northern Ireland devolved authority acting alone, and
(b)
there would be no requirement for the consent of a Minister of the Crown, or for consultation with a Minister of the Crown, in that case.
Meaning of devolved competence
6
A provision is within the devolved competence of the Scottish Ministers if—
(a)
it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament F1..., or
(b)
it is provision which could be made in other subordinate legislation by the Scottish Ministers, the First Minister or the Lord Advocate F2....
7
A provision is within the devolved competence of the Welsh Ministers if—
(a)
it would be within the legislative competence of Senedd Cymru if it were contained in an Act of the Senedd (F3... including any provision that could be made only with the consent of a Minister of the Crown), or
(b)
it is provision which could be made in other subordinate legislation by the Welsh Ministers F4....
8
A provision is within the devolved competence of a Northern Ireland department if—
(a)
the provision, if it were contained in an Act of the Northern Ireland Assembly—
(i)
would be within the legislative competence of the Assembly F5..., and
(ii)
would not require the consent of the Secretary of State,
(b)
the provision—
(i)
amends or repeals Northern Ireland legislation, and
(ii)
would, if it were contained in an Act of the Northern Ireland Assembly, be within the legislative competence of the Assembly F6... and require the consent of the Secretary of State, or
(c)
the provision is provision which could be made in other subordinate legislation by any Northern Ireland devolved authority F7....
Meaning of “Northern Ireland devolved authority”
9
In this Schedule, a “Northern Ireland devolved authority” means the First Minister and deputy First Minister in Northern Ireland acting jointly, a Northern Ireland Minister or a Northern Ireland department.