Clause 1: saving for the implementation period: the power to exclude international agreements from the definition of EU treaties
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: No
Parliamentary Procedure: Draft affirmative procedure for the power to exclude international agreements from the definition of EU treaties
Context and purpose
258.On exit day (as defined by section 21(1) of the EU (Withdrawal) Act 2018), the UK will leave the EU, and the EU (Withdrawal) Act 2018 will repeal the ECA. We will need to ensure that the UK can continue to apply EU law during the implementation period. This will ensure that businesses and citizens only need to prepare for one change as we bridge to the future relationship. Part 4 of the Withdrawal Agreement provides for the implementation period. To achieve this, clause 1 inserts a new section 1A in to the EU (Withdrawal) Act 2018. Section 1A saves and amends the ECA for the duration of the implementation period, reflecting that the UK is no longer a Member State. Whilst up until exit day the ECA’s purpose is to implement EU law as obligated by the UK’s membership of the EU, during the implementation period, the saved and repurposed ECA will implement EU law as set out in the Withdrawal Agreement.
259.As well as saving the ECA, section 1A will take a snapshot of what is an ‘EU Treaty’ on exit day. This will provide certainty as to what falls within the definition of ‘the Treaties’ or ‘EU Treaties’ at exit day and the Treaties will continue to have effect during the implementation period through the saved ECA.
260.Article 129(4) of the Withdrawal Agreement states that the UK Government may negotiate, sign and ratify international agreements entered into in its own capacity covering areas that are within the ‘exclusive competence’ of the EU, as long as they do not enter into force until after the implementation period, unless authorised by the EU.
261.This clause provides a power to Ministers to exclude an international agreement from the definition of Treaties/EU Treaties, where appropriate. Section 1A(3)(a)(ii) of the Bill
is designed to allow for the eventuality where the UK negotiates, signs and ratifies an international agreement during the implementation period in areas of EU exclusive competence, the EU authorises the UK to bring it into force during the implementation period, and, in order to ensure there is no conflict with existing international obligations that flow through the ECA, the UK needs to remove an existing EU-‐‑third country international agreement from the definition of Treaties/EU Treaties.
Justification for power
262.During the implementation period there needs to be certainty as to what falls within the definition of ‘Treaty’ or ‘EU Treaty’ so that any rights that have been given effect to under those ‘Treaties’ or ‘EU Treaties’ will be saved, including any rights given effect to under s.2(1) and regulations made under s.2(2) ECA. ‘Fixing’ the list by virtue of 1A(3)(a)(ii) provides certainty as to what falls within that definition at exit day. This also reflects the fact that from exit day, the UK’s obligations will derive from the Withdrawal Agreement under international law, rather than from its position as a Member State.
263.In areas of exclusive competence of the EU, the EU may authorise the coming into force of new international treaties agreed between the UK and third countries before the end of the implementation period. This may require the removal of an existing international agreement from the definition of ‘the Treaties’ at s.1(2) ECA if this conflicts with our obligations under the new agreement.
Justification for procedure
264.The power to exclude treaties gives the potential for significant policy change, and as a result secondary legislation under this power is subject to the draft affirmative procedure to to provide appropriate scrutiny of the proposed legislation.
Clause 3: supplementary power in connection with the Withdrawal Agreement
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Negative procedure for amendments to secondary legislation; draft affirmative procedure for amendments to primary legislation or retained direct principal EU legislation.
Context and purpose
265.Clause 2 modifies EU-‐‑derived domestic legislation so that it continues to function during the implementation period. This will be achieved by applying ‘glosses‘ to EU-‐‑ related terminology in this legislation so that it continues to operate in light of the implementation period. For example, these ‘glosses’ clarify how references to EU law, an EU Treaty (such as the Treaty on the Functioning of the European Union or the Treaty on European Union), to an area of the EU or a citizen of the EU should be read during the implementation period. Further, clause 2 provides that even where EU-‐‑ derived legislation is not the subject of a specific gloss, it should be interpreted so far as is possible and necessary in line with Part 4 of the Withdrawal Agreement. The provisions in clause 2 which save EU-‐‑derived domestic legislation on exit day, and the glosses applying to such legislation during the implementation period, will automatically be repealed at the end of the implementation period when they are no longer needed.
266.Clause 3 provides Ministers of the Crown with a supplementary power in connection with the implementation period. This clause will insert a new section 8A after section 8 in the EU (Withdrawal) Act 2018. This power is designed to ensure that the domestic statute book fully reflects the UK’s obligations under Part 4 of the Withdrawal Agreement and operates properly in that light. It also enables Ministers to amend provisions of the EU (Withdrawal) Act 2018 in consequence of the repeal of the ECA saving on IP completion day. New section 8A(1) sets out what regulations made under the power can do.
267.Subsection (1)(a) gives Ministers the power to make other modifications for the purposes of section 1B(3)(f)(i). This provides a power for the Minister of the Crown to
specify additional glosses to EU-‐‑related terms in EU-‐‑derived domestic legislation where it is appropriate to do so. This is a limited power to modify legislation for the purposes of ensuring that legislation continues to work for the time-‐‑limited implementation period.
268.Subsection (b) provides for Ministers to disapply the glossing approach for EU-‐‑related references set out in new section 1B(3) and (4). This power can affect a particular piece of legislation or specific term in a piece of legislation, to ensure that it reads as it would have been without the gloss. This is intended to make legislation operable that is caught by the general glosses either inadvertently, or in cases where we would want to make specific exceptions.
269.Subsection (c) gives Ministers the power by regulations to change a specific gloss for particular EU-‐‑related terms to read differently so as to enable the piece of legislation to work as necessary during the implementation period. This might enable an EU related reference to be glossed in a different way. This means a different approach to the general gloss can be taken in order to suit specific circumstances. The purpose of this application is to fix any errors caused by the glosses, where their application has not had the desired effect, but the legislation still requires to be read differently for the purposes of Part 4 of the Withdrawal Agreement. This could be to add in some clarifying wording, or to take a different approach to the general gloss if needed.
270.Subsection (d) provides that Ministers may repeal provisions of the EU (Withdrawal) Act 2018 that need to be repealed or amended in consequence of the repeals of the new provisions which establish the implementation period at new section 1A(5) or 1B(6). This may be necessary in the interests of certainty and clarity, as the Act will have been substantially amended to provide for the implementation period. At the end of that period, some of these modifications will no longer be applicable and therefore should be removed in order for the law to function clearly.
271.Subsection (e) provides that Ministers may make provision, not covered by paragraphs (a)to (d) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. This power is available to Ministers to ensure that domestic legislation fully reflects Part 4 of the Withdrawal Agreement and otherwise operates properly. For example, this power would be available to remove EU-‐‑related references in domestic legislation that were redundant or produced the wrong result in light of the effect of Part 4 of the Withdrawal Agreement and the UK having left the EU.
272.The power in new section 8A may be used to modify any provision made by or under an enactment as defined in section 20(1) of the EU (Withdrawal) Act 2018. This is
therefore a so called ‘Henry VIII’ power. Subsection (3) provides that ‘enactment’ in this case does not include primary legislation passed or made after IP completion day.
273.The UK Government will not normally use the power to amend domestic legislation in areas of devolved competence without the agreement of the relevant devolved administration.
274.The power is sunsetted in subsection (4) so that no regulations may be made under this section after the end of a period of two years starting from IP completion day.
Justification for power
275.The various applications of this power in new section 8A from subsections (1)(a) to (c) to provide for additional glosses, to disapply specific glosses and to make different provision for glosses to EU-‐‑related terms in EU-‐‑derived domestic legislation, as well as the residual power in subsection (e), are necessary to ensure certainty in the application and meaning of the law during the implementation period. The powers in (1)(a) to (c) will be used to ensure that the statute book is able to function properly during the implementation period in accordance with our obligations under the Withdrawal Agreement. The sweeper in paragraph (e) comes after the list of those specific powers and the Government regards use of the sweeper being limited to the sorts of technical corrections intended by those paragraphs above.
276.Government departments and the devolved administrations have tested the glosses in the Bill against their legislation but given the wide-‐‑ranging application of the glosses across the statute book, it is possible that there may be cases where the glosses produce the wrong result or further glosses or other modifications are needed. It is critical that legislation continues to function properly during the implementation period, in order to provide continuity and certainty to business and individuals. In the event that an EU-‐‑related term which has not been glossed is found on the statute book during the implementation period, it will be critical for legal certainty for a Minister of the Crown, or the devolved authorities in respect of legislation within devolved competence, or a Minister of the Crown and a devolved authority acting jointly, to be able to act swiftly to make the appropriate amendments so that it is clear how the legislation should be interpreted.
277.This power is restricted at subsection (3) to ensure it cannot be used to modify primary legislation enacted after the end of the implementation period. The power is further restricted at subsection (4) by a sunset which provides that no regulations can be made under this power two years after the end of the implementation period.
Justification for procedure
278.Any need for the glossing of terms not already identified and provided for expressly in the Bill (or other corrections made under the new section 8A power) will need to be made swiftly in order to ensure legal certainty. The power can be used to modify primary legislation, including to amend or repeal enactments, but it is technical in nature, limited to correcting the the UK statute book to reflect the UK’s obligations under Part 4 of the Withdrawal Agreement, where the meaning of the provision is unclear or simply produces the wrong result. However, in order to fulfil this goal, the power must be capable of modifying both primary and secondary legislation, until the end of the implementation period. For this reason, statutory instruments laid under this power modifying secondary legislation will be subject to the negative procedure, whilst statutory instruments amending primary legislation and retained direct principal EU legislation, will be subject to the draft affirmative procedure to provide appropriate scrutiny of the proposed legislation.
Clause 4: powers corresponding to clause 3 involving devolved authorities
Power conferred on: A devolved authority, or a Minister of the Crown acting jointly with one or more devolved authorities
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Negative procedure for amendments to secondary legislation; draft affirmative procedure for amendments to primary legislation and retained direct principal EU legislation.
Context and purpose
NB. The context for this power is the same as that for clause 3 above.
279.Clause 4 provides devolved authorities acting alone, and for a Minister of the Crown acting jointly with a devolved authority, a supplementary power in connection with the implementation period. After Part 1 of Schedule 2 to the EU (Withdrawal) Act 2018, this clause will insert a new Part 1A. These powers are designed to ensure that the domestic statute book fully reflects the UK’s obligations under Part 4 of the Withdrawal Agreement and operates properly in that light.
280.Paragraph 11A(1)(a) to (d) gives devolved authorities the power to: a. make other modifications for the purposes of section 1B(3)(f)(i). This provides a power for a devolved authority to specify additional glosses for EU-‐‑related terms in EU-‐‑derived domestic legislation where it is appropriate to do so. This is a limited power to non-‐‑textually amend legislation for the purposes of ensuring that legislation continues to work for the time-‐‑limited implementation period; b. disapply the glossing approach for EU-‐‑related references set out in new section 1B(3) or (4). This power can affect a particular piece of legislation or specific term in a piece of legislation, to ensure that it reads as it would have been without the gloss. This is intended to make operable legislation that is caught by the general glosses either inadvertently, or in cases they would want to make specific exceptions to; c. change a specific gloss for particular EU-‐‑related terms to read differently so as to enable the piece of legislation to work as necessary during the implementation period. This might enable an EU related reference to be glossed in a different way. This means a different approach to the general gloss can be taken in order to suit specific circumstances. The purpose of this application is to fix any errors caused by the glosses, where their application has not had the desired effect, but the legislation still requires to be read differently for the purposes of Part 4 of the Withdrawal Agreement. This could be to add in some clarifying wording, or to take a different approach to the general gloss if needed; and d. make provision, not covered by paragraphs (a) to (c) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. This power is available to the devolved authorities to ensure that domestic legislation fully reflects Part 4 of the Withdrawal Agreement and otherwise operates properly. For example, this power would be available to remove EU-‐‑related references in domestic legislation that were redundant or produced the wrong result in light of the effect of Part 4 of the Withdrawal Agreement and the UK having left the EU.
281.Paragraph 11A(2) confers the same power as at 11A(1) on a Minister of the Crown acting jointly with a devolved authority.
282.When acting alone under paragraph 11A(1) the devolved authorities can only make provision which is within the devolved competence, as defined in paragraphs 11D to 11F. In addition, by virtue of the application of paragraphs 5 to 7 of Schedule 2 to the EU (Withdrawal) Act 2018, paragraph 11C provides that any consent, consultation or joint exercise requirements which would otherwise be required in respect of the provision being made will be required when a devolved authority exercises the powers in paragraph 11A to make that provision.
283.The power is sunsetted in paragraph 11A(5) so that no regulations may be made under this section after the end of a period of two years starting from IP completion day.
Justification for power
284.The various applications of these powers in new Part 1A of Schedule 2 to provide for additional glosses, to disapply specific glosses and to make different provision for glosses to EU-‐‑related terms in EU-‐‑derived domestic legislation, as well as the residual power in paragraphs 11A(1)(d) and 11A(2)(d), are necessary to ensure certainty in the application and meaning of the law during the implementation period. The powers in 11A(1)(a) to (c) and 11A(2)(a) to (c) will be used to ensure that the statute book is able to function properly during the implementation period in accordance with our obligations under Part 4 of the Withdrawal Agreement. Government departments and the devolved administrations have tested the glosses in the Bill against their legislation but given the wide-‐‑ranging application of the glosses across the statute book, it is possible that there may be cases where the glosses produce the wrong result or further glosses or other modifications are needed. It is critical that legislation continues to function properly during the implementation period, in order to provide continuity and certainty to business and individuals. In the event that an EU-‐‑related term which has not been glossed is found on the statute book during the implementation period, it will be critical for legal certainty for the devolved authorities or a Minister of the Crown and a devolved authority acting jointly, to be able to act swiftly to make the appropriate amendments so that it is clear how the legislation should be interpreted.
285.This power is restricted at paragraph 11A(4) to ensure it cannot apply to primary legislation enacted after the completion of the implementation period. The power is further restricted at paragraph 11A(5) by a sunset which provides that no regulations can be made under this power two years after the end of the implementation period.
Justification for procedure
286.Any need for glossing of terms not already identified and provided for expressly in the Bill (or other corrections made under the new Part 1A powers) will need to be made swiftly in order to ensure certainty. The powers can be used to modify primary legislation but is technical in nature, limited to correcting the interpretation of the statute book to reflect Part 4 of the Withdrawal Agreement, where the meaning is unclear or simply produces the wrong result. However, in order to fulfil this goal, the power must be capable of modifying both primary and secondary legislation, until the end of the implementation period. For this reason, regulations laid by a Minister of the Crown modifying secondary legislation will be subject to the negative procedure, whilst regulations amending primary legislation and retained direct principal EU legislation, will be subject to the draft affirmative procedure to provide appropriate scrutiny of the proposed legislation, and equivalent scrutiny procedures will apply in the devolved legislatures for regulations laid by a devolved authority.
Clause 27: deficiencies in retained EU law: amendments to the existing correcting powers in the EU (Withdrawal) Act 2018
Power conferred on: A Minister of the Crown, a devolved authority, or a Minister of the Crown acting jointly with one or more devolved authorities
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Existing procedure which applies to section 8(1) of, or Part 1 of Schedule 2 to, the EU (Withdrawal) Act 2018 -‐‑ draft affirmative or negative (with the ‘sifting’ procedure applying to certain negative instruments), subject to urgent procedures
Context and purpose
287.The EU (Withdrawal) Act 2018 contains a power at section 8(1) to correct deficiencies in retained EU law to ensure that the UK statute book functions on exit day when the UK ceases to be a Member State. That Act was passed without prejudice to the negotiations and the final content of the Withdrawal Agreement with the EU. Statutory instruments, including those made under section 8, are therefore being laid to prepare the statute book for the UK’s withdrawal from the EU. To date, the government has laid over 600 statutory instruments and all the statutory instruments laid or made to date can be found on legislation.gov.uk. The devolved authorities also have a corresponding power in Part 1 of Schedule 2 to the EU (Withdrawal) Act 2018 to make corrections in time for exit day to ensure a functioning statute book where these fall within areas of devolved competence. The UK Government will not normally use the power to amend domestic legislation in areas of devolved competence without the agreement of the relevant devolved administration.
288.As a result of the implementation period, the Bill will amend the EU (Withdrawal) Act 2018 so that EU law will not be retained and domesticated on the UK statute book until the end of the implementation period. For this reason, the Bill needs to also amend section 8 of the EU (Withdrawal) Act 2018 so that the power can be used to amend deficiencies arising in retained EU law as at the end of the implementation period.
289.In addition, so that the section 8 power can correct all deficiencies arising from the end of the implementation period, the Bill inserts an additional deficiency into the list of deficiencies in section 8(2). The reason for this is that the snapshot at the end of the implementation period which will form the basis for retained EU law will operate on the UK statute book as it stands at that time, complete with the effect of sections 2 to 6 or Schedule 1 of the amended EU (Withdrawal) Act 2018, including the glosses which apply to EU-‐‑derived domestic legislation during the implementation period due to clause 2. The section 8 power will therefore need to be capable of correcting deficiencies arising from the saving of EU law, including the application of the glosses at the end of the implementation period. For example, this power may be needed where an existing deficiencies regulation already corrects deficiencies in a piece of EU-‐‑ derived domestic legislation and the Bill defers this statutory instrument from coming into force until the end of the implementation period. It may then be necessary to amend the statutory instrument further, to correct deficiencies in that EU-‐‑derived domestic legislation arising from the saving of EU law and application of the glosses, rather than just the deficiencies arising from the end of EU law applying in the UK.
290.This clause also makes a number of technical changes to the section 8 power to allow it to work on deficiencies arising at the end of the implementation period. For example, it amends references to ‘exit day’ so that they refer to ‘IP completion day’ (as defined at clause 37(1)) instead or amends existing deficiencies in section 8(2) so that they catch deficiencies arising from Part 4 of the Withdrawal Agreement. Further, the restriction in section 8(7)(e) on the power being used to implement the Withdrawal Agreement is removed so that deficiencies regulations can take account of the Withdrawal Agreement.
291.Part 1 of Schedule 2 to the EU (Withdrawal) Act 2018 confers a corresponding power to the section 8(1) power on the devolved authorities, and on a Minister of the Crown acting jointly with a devolved authority. Paragraph 1(3) of Schedule 2 provides that section 8(2) to (9) apply for the purposes of the powers conferred by Part 1 of Schedule 2, as they apply for the purposes of section 8(1). As a result, section 8(2) to (9) as amended by this clause will apply for the purposes of Part 1 of Schedule 2.
292.In addition, as a result of the powers being available during the implementation period a number of technical amendments are made by clause 27(7) to references in Part 1 of Schedule 2 to the EU (Withdrawal) Act 2018. These amendments update references to exit day to IP completion day.
Justification for power
293.The amendments to the deficiencies power are required so that it can be used to correct deficiencies in retained EU law resulting from the implementation period that may render the law inoperable.
294.These amendments are necessary to allow the power to function in the revised context of the implementation period. It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of an implementation period.
Justification for procedure
295.This clause is not a new power as it amends the power in section 8(1) of the EU (Withdrawal) Act 2018 to include deficiencies arising as a result of the implementation period. Regulations made under it will continue to be subject to the procedure which Parliament provided for in passing the EU (Withdrawal) Act 2018, detailed below.
296.Schedule 7, Part 1, paragraph 1 of that Act provides that the draft affirmative procedure must be used if an instrument made under section 8(1) does one or more of the things listed in sub-‐‑paragraph (2): a. transfers an EU legislative function (i.e. a power to make delegated or implementing acts) to a UK body; b. relates to fees of a public authority; c. creates or widens the scope of a criminal offence (although the power cannot be used to create certain criminal offences); or d. creates or amends a power to legislate.
297.Schedule 7, Part 1, paragraph 1 also provides that the equivalent procedure to the draft affirmative procedure in the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly, must be used in respect of an instrument made under Part 1 of Schedule 2 which does one of more of the things listed in sub-‐‑paragraph (2). In addition, paragraph 2 of Schedule 7 to that Act establishes the applicable procedures in respect of regulations made under Part 1 of Schedule 2 of a Minister of the Crown acting jointly with a devolved authority.
298.Schedule 7, Part 1, paragraph 3 of that Act also requires, before instruments under section 8(1) being proposed for the negative procedure may be made, that the Minister lays a draft of the instrument before both Houses of Parliament, along with a memorandum explaining the choice of procedure. This committee has 10 sitting days (beginning on the first day both Houses are sitting, and ending on, where Commons sitting days are different to Lords sitting days, whichever period ends later) to make a recommendation as to the appropriate procedure for the instrument. After receiving the recommendation, or after 10 sitting days without a recommendation, a Minister may either proceed with making a negative instrument, or proceed with an affirmative instrument instead. In either circumstance, the Minister need not proceed immediately, but may proceed with the instrument at a later date. If the Minister disagrees with a recommendation of a committee for the affirmative procedure, they will be required to make a statement in writing explaining why they disagree before they can proceed with the negative procedure. Schedule 7, Part 1, paragraph 4 requires a similar process in the National Assembly for Wales in respect of regulations of Welsh Ministers.
299.Schedule 7, Part 1, paragraph 5 allows for the made affirmative procedure to be used instead of the draft affirmative, for regulations under section 8 made by a minister of the crown in urgent cases. Sub-‐‑paragraph (8) enables Ministers to make negative regulations without going through the procedure at paragraph 3 in urgent cases (in cases which do not trigger the affirmative procedure). Schedule 7 Part 1 paragraph 6 makes equivalent provision for regulations made by the devolved authorities under Part 1 of Schedule 2 in urgent cases.
Paragraph 1(3) and (5) of Part 1,
Schedule 6: powers to make exceptions from and add powers to the general rule delaying exit day provisions in EU Exit
SIs
Power conferred on: A Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: No
Parliamentary Procedure: No Procedure before exit day and negative procedure after exit day
Context and purpose
300.The EU (Withdrawal) Act 2018 contains powers which aim to prepare the UK statute book for withdrawal from the EU. For example, under section 8(1) of that Act a Minister of the Crown can make regulations to correct deficiencies in retained EU law. Part 1 of Schedule 2 to that Act also makes provision for the devolved authorities acting alone and the devolved authorities acting jointly with a Minister of the Crown to make regulations to correct deficiencies in retained EU law.
301.Since the passage of this Act, the UK Government has been making regulations to ensure a functioning statute book on exit day, without prejudice to the outcome of negotiations. Many of these regulations would therefore be unnecessary and unworkable if they came into force during the implementation period. For example, deficiencies regulations might transfer functions from an EU to a UK authority or remove redundant provisions, such as requirements on the UK to make reports to the European Commission, to reflect that the UK no longer has ongoing arrangements with the EU and may therefore put the UK in breach of its obligations under Part 4 of the Withdrawal Agreement which continue those arrangements.
302.As the Bill ensures that EU law will continue to apply in the UK for the duration of the implementation period, regulations made under powers in the EU (Withdrawal) Act 2018 will mostly not be required for this period. The Bill will therefore generally defer these regulations from coming into force on exit day to coming into force on IP completion day.
303.The Bill accomplishes this by directing, in Paragraph 1(1) of Schedule 6, that where regulations, or any part of them, are made under specified powers and are to come into force immediately before exit day, on exit day or after exit day and by reference to exit day (such as ‘three months after exit day’), this is to be read instead as providing for those regulations to come into force immediately before IP completion day, on IP completion day or after IP completion day and by reference to IP completion day (such as ‘three months after IP completion day’) (the ‘mass deferral’).
304.The key powers in the EU (Withdrawal) Act 2018 under which these regulations will be made have been specified in paragraph 1(1)(a) of Schedule 6. However, in some cases, Ministers or a devolved authority will make EU Exit statutory instruments under powers in other Acts (or possibly under other powers in the EU (Withdrawal) Act 2018) which aim to prepare the statute book for exit day. As with the deficiencies regulations made under section 8(1) of the EU (Withdrawal) Act 2018, and deficiencies regulations made under Part 1 of Schedule 2 to that Act, their coming into force during the implementation period would likely render the law confusing or potentially breach our international obligations under the Withdrawal Agreement.
305.The Bill will therefore provide a power for the appropriate authority to specify, by regulations, other powers under which statutory instruments will be made to come into force immediately before, on or after exit day, which should be deferred to come into force instead immediately before, on or after IP completion day. Appropriate authority is defined by paragraph 1(8) of Schedule 6 as a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.
306.Paragraph 2 provides for the exercise of this power by the devolved authorities acting alone. The devolved authorities will be able to specify additional powers under which statutory instruments will be made to come into force immediately before, on or after exit day, which should be deferred to come into force instead immediately before, on or after IP completion day. They will be able to do so where those powers permit the devolved authority acting alone to make subordinate legislation, or permit another person to make the subordinate legislation where the power would also have permitted the devolved authority, acting alone, to have made that subordinate legislation. So far as applicable to the making of subordinate legislation under the powers to be specified, in order to produce the same result as produced by specifying the power, any requirement to consult the UK Government applicable under the powers to be specified will also apply for the purposes of the devolved authority acting alone specifying the power.
307.In a small number of cases, provisions in EU exit statutory instruments may be required to be in force for the implementation period. Further, as EU exit statutory instruments will continue to be made during the passage of the Bill in order to prepare the statute book for exit day, it may not be possible to finalise any exceptions needed for exit day until close to exit day. Other exceptions may come to light during the implementation period. For example, it may be appropriate to bring a provision into force before IP completion day to allow for preparatory steps to be taken in advance. The appropriate authority will, therefore, have a power to make exceptions to the mass deferral. This is done in paragraph 1(5) of Schedule 6 which enables regulations to be made that make different provision for particular cases from the mass deferral or provide for the mass deferral to not apply.
308.Paragraph 3 provides for the exercise of this power by a devolved authority acting alone. As a result, a devolved authority can, acting alone, only provide for a provision in subordinate legislation to be excepted from the mass deferral, so far as the result of that exception is a result which they could have produced acting alone under the power which the subordinate legislation in question was made by. Paragraph 3 also provides that in certain cases the consent of a Minister of the Crown is required where a devolved authority is acting alone, or that joint procedure is required. In all other cases, consultation with a Minister of the Crown is required for a devolved authority acting alone to make an exception to the mass deferral, and therefore, bring into force provisions prior to IP completion day.
Justification for powers
309.Government Departments and the devolved administrations have reviewed statutory instruments made with a coming into force date of exit day to assess whether they will be required during the implementation period.
310.A number of powers have been identified under which EU exit statutory instruments are being made before exit day and should be deferred until the end of the implementation period. However, as these instruments may still be being made up until exit day, the full list of powers cannot be completely confirmed until close to exit day. As such, the Bill takes a power for the appropriate authority to specify additional powers once the full list of powers can be confirmed.
311.The Bill will also need to confer a power on the appropriate authority to make exceptions to the mass deferral. This is necessary to allow time for the UK Government and the devolved administrations to finalise any exceptions which might be needed for exit day. Further, in the event that departments and the devolved administrations continue to make secondary legislation for exit day, it is possible that a need for provisions to be exempted will only be identified close to exit day. Were this to occur, it would be necessary to exempt such secondary legislation from the deferral, and a power to do so is therefore necessary. It may also become apparent during the implementation period that a different coming into force date is needed. It is also possible to expressly disapply the mass deferral in the subordinate legislation itself, under paragraph 1(2) of Schedule . However, this will only be possible when the need for the exception is known at the time of making the instrument.
Justification for procedure
312.For the reasons given above, the appropriate authority may need to exercise both powers very close to and for exit day.
313.As such, there is no procedure in the UK Parliament or the devolved legislatures for the exercise of these powers to make the technical provision needed in time for exit day, so that we can ensure a clear and functioning statute book on exit day.
314.After exit day, any changes will still be technical and minor, but there will be more time, as the urgency of exempting or preventing statutory instruments from coming into force on exit day will have passed. Any subsequent uses of the powers after exit day will therefore be subject to the negative procedure.
6.Other powers in the Bill/amendments to powers in the European Union (Withdrawal) Act
Paragraph 4(2) of Schedule 4: power to amend table referred to in the definition of ‘workers’ retained EU rights’
Power conferred on: Minister of the Crown
Power exercisable by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary procedure: Draft affirmative
Context and purpose
315.Clause 34 (Protection for workers’ rights) makes provision for a new Schedule 5A to be inserted into the EU (Withdrawal) Act 2018. Schedule 4 of the Bill contains the provision to be inserted. One of the matters provided for in this new schedule requires a Minister in charge of a Bill to make a statement of non-‐‑regression, which requires an assessment as to whether or not the Bill results in a failure to confer a ‘worker’s retained EU right’. The definition of ‘workers’ retained EU rights’ is provided for at paragraph 3(1) of Part 3 of new Schedule 5A (Interpretation) and includes reference to obligations that the UK was obliged to confer by virtue of certain EU directives at the end of the implementation period. That list of directives is set out in a table at paragraph 4(1), Part 3 of new Schedule 5A. The power at paragraph 4(2) of the new Schedule enables the Secretary of State, by regulations, to add to/amend that list in consequence of changes to EU legislation before the end of the implementation period.
Justification for power
316.The Government appreciates that this is a so called ‘Henry VIII’ power; but believes that it is important to ensure that, if there is new EU legislation that has a transposition deadline within the implementation period, this can be added to the relevant list of EU legislation – so that it is included in the non-‐‑regression assessment. The power can only be used to amend this list, to add new pieces of EU legislation which are made before the end of the IP, or remove those which are repealed or superseded and cannot be used to amend other primary legislation. The power is time-‐‑limited and sunsets 12 months after the end of the implementation period. Paragraph 58(6) of Schedule 6 amends paragraph 40 of Schedule 8 of the EU (Withdrawal) Act 2018 to ensure that the existing provision there (which confirms that the prohibition on making regulations after the sunset does not affect the continuation in force of regulations made prior to the sunset) applies to paragraph 4(2) of new Schedule 5A.
Justification for procedure
317.Regulations made under this section are subject to the affirmative resolution procedure. Despite the very limited circumstances in which it may be used, and the fact that the power is time-‐‑limited (it sunsets 12 months after the end of the implementation period), the Government is of the view that the affirmative procedure is appropriate given the general approach taken to the scrutiny of so called ‘Henry VIII’ powers in the Bill.
Clause 37(4): power to amend ‘IP completion day’
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: negative procedure
Context and purpose
318.IP completion day is defined as 11.00 p.m. on 31 December 2020. The end of the implementation period is linked to the end of the current EU multiannual financial framework with 11.00 p.m. on 31 December 2020 UK time corresponding to midnight on 31 December 2020 Brussels time.
319.Article 132 of the Withdrawal Agreement provides for a single extension by a period of up to two years to the duration of the implementation period up to 31 December 2022, with any decision to extend the implementation period to be made by the Joint Committee before 1 July 2020.
320.The EU is also currently consulting on the functioning of EU summer-‐‑time arrangements as provided for by Directive 2000/84/EC which currently requires that the clocks of EU Member States are changed twice per year but with a proposal to either keep current summer-‐‑time arrangements or discontinue the current bi-‐‑annual time changes for all Member States and prohibit periodic switches. This would not affect the choice of time zone, and it would ultimately remain each Member State’ʹs decision whether to go for permanent summer or wintertime (or a different time).
Justification for power
321.This is a limited (albeit significant) power which allows a Minister of the Crown to make regulations to amend the definition of IP completion day in this Bill to allow for an extension to the implementation period as a result of a decision of the Joint Committee to provide for a single extension of the implementation period.
322.The power also allows a Minister of the Crown to make regulations to amend the definition of ‘IP completion day’ and the references to ‘IP completion day’ in the Act as a result of a change to EU summer-‐‑time arrangements during the implementation period so as to ensure that the definition of IP completion day in the UK is the same as in Brussels time.
Justification for Procedure
323.Any extension of the implementation period will be as a result of a decision by the Joint Committee. Any extension of the implementation period would be a sovereign decision for the UK. No extension could be agreed by the UK without the House of Commons having passed a motion to approve the proposed extension and the House of Lords having had the opportunity to debate the proposed extension as provided for by clause 30. It is therefore appropriate for regulations amending the definition of ‘IP completion day’ to be subject to the negative procedure as the amendment would merely reflect what had been agreed under international law and what had already been approved by the House of Commons.
324.The negative procedure would also apply to regulations made under this power to amend IP completion day and references to IP completion day as a result of technical changes to EU summer-‐‑time arrangements.
Clause 39(1) and (5): powers to make consequential provision and transitional, transitory and savings provision
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Negative procedure for the consequential power; no procedure in the case of the transitional etc power
325.This clause contains two powers: one to make such consequential provision and the other to make transitional, transitory or saving provision as is appropriate in connection with the coming into force of any of the provisions of the Bill.
326.Subsection (1) provides that a minister of the Crown can make regulations as she considers ‘appropriate’ in consequence of the Act. There are likely to be a range of different ways in which consequential issues could be addressed. Accordingly, it is for the Minister to determine what is appropriate.
327.Subsection (2) permits regulations made under subsection (1) to be exercised by, among other things, modifying any provision made by or under an enactment. ‘Enactment’ is defined at clause 37(1) and includes primary legislation. The power is therefore a so called ‘Henry VIII’ power.
328.Subsection (3) provides that enactment for the purposes of subsection (2) does not include primary legislation passed or made after the end of the parliamentary session in which this Bill becomes an Act.
329.Subsection (4) directs the reader to Parts 1 and 2 of Schedule 6 which provide for general and specific consequential provision made by the Bill.
330.Subsection (5) provides a Minister of the Crown with the power to make, by regulations, such transitional, transitory or saving provision as she considers appropriate in connection with the coming into force of any provision of the Bill. As for subsection (1), it is for the Minister to determine what is appropriate.
331.Subsection (6) directs the reader to Part 3 of Schedule 6 which contains specific transitional and savings provisions.
Justification for powers
332.This Bill builds on changes to the legal framework of the UK that began with the EU (Withdrawal) Act 2018.
333.As a result of changes required to the statute book required to give effect to the Agreements, there will inevitably be consequential amendments required in order to ensure that the statute book is compatible with the obligations the UK has signed up to. Provision which may be made by regulations includes that which is in consequence of particular provision or a number of provisions or the Bill as a whole. Where it has been possible to identify specific consequential amendments required, these have been made by Part 2 of Schedule 6 of the Bill.
334.The consequential power is limited to making amendments consequential to the contents of the Bill itself and not for any other purpose. Although the consequential power may be exercised to amend primary legislation, the effect of subsection (3) is that it cannot be used to modify primary legislation passed or made after IP completion day. The so called ‘Henry VIII’ aspect of this power is therefore time-‐‑ limited and any amendments to primary legislation which is consequential on the contents of the Bill cannot be made beyond the end of the implementation period. This ensures that any primary legislation currently before Parliament for example and which cannot be expected to have taken into account the consequences of this Bill when it was drafted and made, can be amended. Beyond the end of the implementation period however, primary legislation will need to take into account that matters provided for by this Bill as the consequential power will no longer be available.
335.The transitional, transitory or savings power is a standard power to make transitional, transitory or saving provision in connection with the bringing into force of provisions in the Bill. This power therefore provides for further transitional, transitory or savings provisions to be made over and above those already set out at Part 3 of Schedule 6 to the Bill. The purpose of such powers is to ensure a smooth transition between existing law and the law as it will look after the implementation period.
336.As with the power to make consequential provision, any such power will be construed strictly.
337.Clause 39 is substantively drafted in identical terms as the consequential and transitional powers passed by Parliament in the EU (Withdrawal) Act 2018.
Justification for procedure
338.The consequential power is subject to the negative procedure. It is nevertheless considered that such an approach is justified -‐‑ the consequential power, like consequential powers in other primary legislation, will be construed strictly by the courts and, in effect, to making the minimum amendments necessary to procedure, or machinery to reflect the provisions of the Act or instrument concerned. In particular there will be a presumption against substantive changes that interfere with rights or liabilities20.
339.The transitional power is subject to no procedure. There is substantial precedent for this type of power to attract no procedure, as most recently seen in the Taxation (Cross-‐‑border Trade) Act 2018.
20 Ye Olde Cheshire Cheese Ltd v Daily Telegraph Plc [1988] 1 W.L.R. 1173
Paragraphs 5 and 69 of Schedule 6:
operation of the powers to make consequential provision and transitional, transitory and savings provision in the EU (Withdrawal) Act 2018
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes, but only in respect of section 23(1) -‐‑ the consequential power
Parliamentary Procedure: Existing procedures which apply to section 23(1) and (6) of the EU (Withdrawal) Act 2018
Context and purpose
340.Paragraph 5(1) of Schedule 6 clarifies that the consequential power in the EU (Withdrawal) Act 2018 is capable of making regulations in consequence of the Act as amended by or under the Bill. The Bill will also amend section 23(3) so that the consequential power can amend primary legislation until the end of the implementation period. Further, the power will be sunset ten years from IP completion day.
341.Paragraph 69(1) of Schedule 6 clarifies that the transitional, transitory and saving power in section 23(6) the EU (Withdrawal) Act 2018 is capable of making regulations in connection with the coming into force of any provision of the Act as amended by or under the Bill. The Bill will also amend section 23(6) so that the power can be used in connection with the coming into force of any provision including its operation in connection with IP completion day. Justification for power
342.The clarification in Paragraph 5(1) is required so that the consequential power in section 23(1) the EU (Withdrawal) Act 2018 can be used as intended in the event of an implementation period. This enables the power to be used to make regulations in consequence of the Act as it will stand following the passage of this Bill and the modifications this will make to it. The further amendments ensure that the power can be exercised in light of the implementation period.
343.The clarification in paragraph 69(1) is required so that the consequential power under section 23(6) of the EU (Withdrawal) Act 2018 can be used as intended in the event of
an implementation period. This enables the power to be used to make regulations in connection with the coming into force of any provision of the Act as it will stand following the passage of this Bill and the modifications this will make to it. The further amendment ensures that the power can be exercised in light of the implementation period.
Justification for procedure
344.These are technical extensions of the powers to make consequential and transitional, transitory or saving provision under sections 23(1) and 23(6) of the EU (Withdrawal) Act 2018. Regulations made under these powers will continue to be laid under the procedures set out in paragraphs 15, 16 and 17 of Schedule 7 of that Act.
Clause 40(7): power to make commencement provisions
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: No
Parliamentary Procedure: no procedure
Context and purpose
345.This clause contains a standard power for a Minister of the Crown to bring provisions of the Bill into force by commencement regulations. Clause 40(6) lists the provisions that will come into force on the day on which the Bill is passed. Not all of the provisions in the Bill will need to be in force immediately on the Bill being passed and for this reason, a power is taken to enable a Minister of the Crown to appoint, by regulations, a day (or different days) for the coming into force of the remainder of the provisions contained in the Bill.
Justification for power
346.Some parts of the Bill will need to be commenced earlier than others. For that reason, where commencement is not already expressly provided for at clause 40(6), this power will enable a Minister of the Crown to make regulations to commence particular provisions for when they are needed.
Justification for procedure
347.As is usual with commencement powers, regulations providing for the coming into force of the remainder of the provisions of the Bill are not subject to any parliamentary procedure. Parliament has approved the principle of the provisions to be commenced by enacting them; commencement by regulations enables the provisions to be brought into force at the appropriate time.
Clause 28: amendment to powers in connection with Fees and Charges
Power conferred on: An appropriate authority (as defined by Schedule 5, Part 1, paragraph 2, EU (Withdrawal) Act 2018)
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: No
Parliamentary Procedure: Negative procedure where the altering of a fee or charge is to reflect changes in the value of money, otherwise draft affirmative procedure applies.
Context and purpose
348.The EU (Withdrawal) Act 2018 contains a power at Part 1 of Schedule 4 to provide for fees or charges in connection with functions given to public authorities by section 8 or section 9 of that Act. This enables UK ministers and devolved authorities to create fees and charges in connection with functions that public bodies in the UK take on in connection with EU exit. It ensures ministers have the flexibility to ensure the burden of specific industry-‐‑related costs does not fall on the general taxpayer. It should be noted that this could include the creation of tax-‐‑like charges, which go beyond recovering the direct cost of the provision of a service to a specific firm or individual, including to allow for potential cross-‐‑subsidisation or to cover the wider functions and running costs of a public body, or to lower regulatory costs for small or medium sized enterprises.
349.This clause extends this fee charging power by amending Schedule 4 of the EU (Withdrawal) Act 2018 so it can also be used in connection with functions given to public authorities by new sections 8B and 8C (and the corresponding powers for devolved authorities in new Part 1B and Part 1C of Schedule 2).
350.Extending Schedule 4 Part 1 to cover these new powers, means that they can also be used to mitigate the burden on the general taxpayer to pick up the cost of functions created to deal with the implementation of the Withdrawal Agreement and EEA EFTA Separation Agreement by new sections 8B and 8C (and their corresponding equivalents). For example, it is anticipated that this could include the cost of renewing certain intellectual property rights. While the Withdrawal Agreement and EEA EFTA Separation Agreement set out that existing rights holders will be granted equivalent UK rights at no charge, once these have expired there will be costs associated with their renewal. It may be that this power would be used in connection with those costs.
351.Subsection (c) sets out that the time limit that exists for making certain provisions under this power will not apply to its extended role. This is because the duties to implement the Withdrawal Agreement and EEA EFTA Separation Agreement on OSIs are not strictly time limited and it is therefore not possible to define the end point of the functions created in connection with those agreements.
352.The power as set out in Schedule 4 is capable of being used to confer a power on public authorities to create their own fees and charges schemes. The regulations conferring such a power on a public authority would themselves be subject to Treasury consent and the draft affirmative procedure.
353.In addition, for the UK Government, Treasury consent is required for the creation of a new fee or charge, further ensuring departments justify their case. This constraint does not apply to the devolved authorities, in accordance with standard practice around financial arrangements for devolution (although devolved authorities could of course impose their own similar constraints administratively to mirror the requirement for Treasury consent).
Justification for power
354.This power is designed to allow flexibility in how new Government functions are funded. It enables the creation and modification of fees or other charges so the costs of Government services do not have to always fall on the taxpayer.
355.The power is designed to work in conjunction with functions that may be legislated for by regulations under new sections 8B and C (and the corresponding powers for devolved authorities in new Part 1B and 1C of Schedule 1). It therefore follows that provision for creating fees and charges in this connection be made via a regulation-‐‑ making power.
Justification for procedure
356.The draft affirmative procedure applies to the current exercise of the power in the UK Parliament or the devolved legislature, depending where the regulations are made, where departments provide for the charging of new fees. This procedure would be extended to the new functions of the power. The Government recognises that the decision whether or not to charge for a particular function is a policy choice with impact on industry or individuals wishes to ensure appropriate scrutiny of the proposed legislation for this exercise of the power (unless the power is being exercised only to reflect changes in the value of money in which case, the negative procedure will apply on the basis that the power is being used only to update in line with inflation rather than to reflect any policy change).
Paragraph 50, Part 2 of Schedule 6: amendment to power to provide for judicial notice
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: No
Parliamentary Procedure: Draft affirmative procedure
Context and purpose
357.The EU (Withdrawal) Act 2018 contains a power at paragraph 4, Part 2 of Schedule 5 which enables Ministers to make provision on judicial notice and evidential rules on EU law, the EEA agreement, and retained EU law. The power was taken to ensure that, despite the repeal of the ECA, provision could be made which would allow the courts to continue to take notice of aspects of EU law (such as the EU Treaties) and determine how evidence of EU instruments may be given in domestic courts. As was explained in the first Delegated Powers Memorandum21 to the then EU (Withdrawal) Bill, notwithstanding the repeal of the ECA, provisions on judicial notice and admissibility would in any event need to be supplemented to take into account the final details of the change in the legal landscape following the UK’s exit from the EU.
358.The Bill amends paragraph 4(5) of Part 2, Schedule 2 to broaden the meaning of ‘a relevant matter’ for the purposes of paragraph 4(1) so as to include ‘the EEA EFTA Separation Agreement’, ‘the Swiss Citizens’ Rights Agreement’ and ‘the Withdrawal Agreement’ (paragraph 4(5)(ca) to (cc)) and anything which is specified in the regulations and which relates to a matter mentioned in those Agreements (paragraph 4(5)(d)).
359.The Bill also makes a consequential change at paragraph 4(4) so as to ensure that regulations made under paragraph 4 cannot modify any provision contained in primary legislation passed or made after IP completion day (rather than after the end of the parliamentary Session in which the EU (Withdrawal) Act 2018 was passed).
Justification for amendments to the power
21 Dated 13 July 2017.
360.The broadening of the definition of ‘a relevant matter’ has the effect that regulations may be made by a Minister of the Crown to provide for the admissibility in legal proceedings of the EEA EFTA Separation Agreement, the Swiss Citizens’ Rights Agreement and the Withdrawal Agreement or anything which relates to it (if specified in the regulations). This is in addition to the regulations which may already be made under this power to provide for the admissibility in any legal proceedings of retained EU law, EU law and the EEA EFTA Separation Agreement (or anything which is specified in the regulations and which relates to them).
361.The consequence of not including ‘the EEA EFTA Separation Agreement’, ‘the Swiss Citizens’ Rights Agreement’ and ‘the Withdrawal Agreement’ as a ‘relevant matter’ for the purpose of the power at paragraph 4(1) is that these Agreements will need to be proved by evidence before a court of law in accordance with the general rule that all matters in issue or relevant to legal proceedings must be proved before they are admitted. This would create an unnecessary hurdle for those seeking to rely on matters contained in these agreements before a court or tribunal.
362. The amendment to paragraph 4(4) to ensure that regulations made under paragraph 4 cannot modify any provision contained in primary legislation passed or made after IP completion day (rather than after the end of the parliamentary Session in which the EU (Withdrawal) Act 2018 was passed) is adopted in the context of the transition period agreed between the UK and EU in the Withdrawal Agreement. Without this amendment, modifications to primary legislation required as a consequence of the exercise of the power at 4(1) could only be made up to the end of the parliamentary Session in which the Bill was passed (autumn of 2019) despite the fact that this has already come to pass, that the UK will continue to apply EU law for several more months whilst it is in the implementation period, and this would prevent the power being exercised for its intended purpose. As any regulations made under this power will not be required until the end of the implementation period, it is sensible to avail the relevant Government Departments of time to make regulations for this purpose so that they may be ready for the day of expiry of the implementation period.
Justification for the procedure
363.The power contained in the EU (Withdrawal) Act 2018 is currently subject to the draft affirmative procedure on the basis that the content of any regulations made under it may be of particular interest to Parliament. On the basis that Parliament has already approved the procedure in connection with the exercise of this power, the Bill does not seek to amend it.
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