Dealing with deficiencies arising from withdrawal
The Withdrawal Act gives ministers of the Crown a power to make secondary legislation to deal with deficiencies that would arise on exit in retained EU law. This includes the law which is preserved and converted into UK law, both domestic law and directly applicable EU law). These problems, or deficiencies, must arise from the UK’s withdrawal from the EU
The law is not deficient merely because a minister considers that EU law was flawed prior to exit. A minister is able to take action before exiting in order to prevent the deficiency from arising. A failure of retained EU law is a type of deficiency: A failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.
The sorts of deficiencies that the power can deal with are set out. These include:
- provisions that have no practical application after the UK has left the EU;
- provisions on functions that are currently being carried out in the EU on the UK’s behalf, for example by an EU agency;
- provisions on reciprocal arrangements or rights between the UK and other EU member states that are no longer in place or are no longer appropriate;
- any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate;
- EU references that are no longer appropriate.
Deficiencies not on the list but which are “of a similar kind” to those above are within the scope of the correcting power.
There is a delegated power for ministers of the Crown to provide for additional sorts of deficiencies. This power will be exercisable by statutory instrument subject to the affirmative procedure.
Retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient.
What Power Allows
Secondary legislation made under the power in this section can do anything an Act of Parliament might to deal with deficiencies. This could include altering Acts of Parliament where appropriate and sub-delegating the power to a public authority where they are best placed to deal with the deficiencies. The power cannot be used to impose or increase taxation or fees, make retrospective provision, create a relevant criminal offence, establish a public authority, amend the Human Rights Act 1998 or any subordinate legislation made under it, amend the devolution Acts (except in certain specific and limited ways), or for the purposes of implementing the withdrawal agreement.
The Withdrawal Act provides, non-exhaustively, for what the secondary legislation made under this power can do. For example, it can transfer the functions of EU authorities to UK public authorities. These functions might include the ability to set rules or create standards, which are currently made by the EU as non-legislative acts (delegated and implementing acts).
The power can be used to repeal, amend or replace parts of the retained law. There will be other uses of the power necessary to correct deficiencies. The power could be used to amend the law which is not retained EU law where that is an appropriate way of dealing with a deficiency in retained EU law.
Devolved authorities
The Withdrawal Act provides that devolved authorities can exercise the power to deal with deficiencies arising from withdrawal and the power to implement the withdrawal agreement .
The Scotland Act 1998, Northern Ireland Act 1998, and Government of Wales Act 2006 currently require the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales respectively to legislate in a way that is compatible with EU law.
The Withdrawal Act removes this requirement from each of these Acts for after exit day. It instead provides that the devolved legislatures cannot legislate contrary to restrictions specified by a Minister of the Crown in regulations. The Act creates a power for a Minister of the Crown to specify by regulations areas in which the Scottish Parliament may not modify, or confer powers to modify, retained EU law. This power could also be used to revoke such regulations.
Any restriction applied using the power does not affect the competence of the Scottish Parliament to make any provision that it could have made immediately before exit day.
Before regulations can be put to the UK Parliament for approval, a decision on consent must have been made by the Scottish Parliament, or a 40 day period must have elapsed in which no consent decision has been made. The Act sets out the different ways in which the Scottish Parliament could signify whether it agrees, or does not agree, to the laying of draft regulations before the UK Parliament.
The Act requires that a Minister of the Crown proposing to lay draft regulations must provide a copy to the Scottish Ministers and inform the Presiding Officer of the Scottish Parliament.
The power will expire two years after exit day and the regulations made under the power will expire five years after they come into force.
The consent process does not apply for the purposes of revoking regulations made under the power.
The Withdrawal Act inserts equivalent provisions into the Government of Wales Act 2006 and the Northern Ireland Act 1998 respectively.
The Withdrawal Act provides a power for a Minister of the Crown by regulations to repeal any of the new powers that ‘freeze’ devolved competence in relation to retained EU law.
Limits on Devolved Powers
The power to deal with deficiencies arising from withdrawal can be used by devolved authorities acting alone, or by ministers of the Crown and devolved authorities acting jointly. The same restrictions on UK ministers’ power also apply to devolved authorities’ power.
The power to deal with deficiencies arising from withdrawal cannot be used outside of devolved competence where exercised by devolved authorities acting alone.
There is no power for devolved authorities to modify retained direct EU legislation acting alone.
The devolved authorities are prohibited , when acting alone, from using the power in ways that would create inconsistencies with any modifications to retained direct EU legislation or retained EU law which the UK Government has made under the Act, that could not have been made by the devolved authority For example, where the UK Government has modified an EU regulation, in way which the devolved authority could not, and a devolved authority is correcting domestic legislation which sets out enforcement provisions for that EU regulation, the domestic legislation will need to be corrected in a way that is consistent with the modified EU regulation.
This Article draws on UK Parliamentary material. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).
Contact McMahon Legal