Clause 21: main power in connection with Ireland/Northern Ireland Protocol
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes (main power); No (definitional power)
Parliamentary Procedure: Draft affirmative procedure where a statutory instrument under new section 8C(1) of the EU (Withdrawal) Act 2018 amends, repeals or revokes primary legislation or retained direct principal EU legislation; establishes a public authority; relates to a fee in respect of a function exercisable by a public authority in the UK; creates, or widens the scope of, a criminal offence; creates or amends a power to legislate; or facilitates the access to the market within Great Britain of qualifying Northern Ireland goods. Otherwise the negative procedure applies. Draft affirmative procedure for power to define ‘qualifying Northern Ireland goods’ under new section 8C(6).
Context and purpose
219.The Protocol on Ireland/Northern Ireland (the ‘Protocol’) provides arrangements that seek to ensure that the UK (including Northern Ireland) does not remain in a customs union with the European Union. The Protocol also makes arrangements to ensure that there are no checks and controls conducted at or near the border between Northern Ireland and Ireland, as well as providing that the arrangements contained in the Protocol are to be subject to democratic consent in Northern Ireland.
220.As set out above, the rights and obligations arising under the Withdrawal Agreement will be available in domestic law by virtue of new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill). This includes those rights and obligations contained within the Protocol and its Annexes, meaning that some provisions in the Protocol will not require any further domestic legislation. However, there will be a need to set out some further details in domestic legislation to ensure that the Protocol is given full effect in the UK legal system.
221.For example, the obligation on the UK, under Article 2(1) of the Protocol, to ensure that no diminution of the rights, safeguards and equality of opportunity, as set out in the relevant Chapter of the Belfast (Good Friday) Agreement 1998, results from the UK’s withdrawal from the EU, will be given effect in domestic law through new section 7A of the EU (Withdrawal) Act 2018. However, the obligation to ensure that there is no diminution of rights etc. includes the area of protection against discrimination as enshrined in the EU directives listed in Annex 1 of the Protocol and, by virtue of Article 13(3) of the Protocol, the reference to these directives shall be read as referring to them as amended or replaced. The effect of this is that domestic legislation may need to be amended as the directives listed in Annex 1 develop.
222.Furthermore, the UK will be required to set up the framework necessary to give effect to the obligations contained in the Protocol. This will require amendments to domestic legislation and retained direct principal EU legislation in the areas covered by the Protocol.
223.As mentioned above, pursuant to Article 13(3) of the Protocol, the implementation of the Protocol necessitates more than just preserving the status quo. Further action will be required domestically to take account of the developments in relevant areas of EU law listed in the Protocol Annexes.
224.Clause 21 (which inserts a new section 8C into the EU (Withdrawal) Act 2018) provides Ministers of the Crown with the power to make provision for the purposes of implementing the Protocol.
225.Subsection (1) of new section 8C provides Ministers with the power to make provision which they consider is appropriate for the purposes of implementing the Protocol. This includes supplementing the effect of new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill) in relation to the Protocol, or dealing with matters arising out of, or related to, the Protocol. This will be used where further provision is required to give effect to the Protocol, including where amendments to domestic legislation are required as a result of developments in the EU law which is listed in the Annexes to the Protocol. This includes giving effect to amendments to the Withdrawal Agreement adopted by the Joint Committee falling within the scope of the particular matters that this power is intended to address.
226.Subsection (2) provides that regulations made under this power are capable of doing anything an Act of Parliament can do (including modifying the EU (Withdrawal) Act 2018).
227.Subsection (3) clarifies that the power may be used to make provision facilitating the access to the market within Great Britain of qualifying Northern Ireland goods.
228.Subsection (4) clarifies that regulations made in connection with subsection (3) may, among other things, provide for the recognition within Great Britain of technical regulations, assessments, registrations, certificates, approvals and authorisations issued by the authorities of a Member State or bodies established in a Member State in respect of qualifying Northern Ireland goods.
229.Subsection (5) clarifies that the power can be used to restate elements of the Protocol that automatically become domestic law via new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill). This type of restatement can occur where it would be helpful to provide clarity or to make the law more accessible.
230.Subsection (6) places a duty on a Minister of the Crown to exercise the power to define, in regulations, the term ‘qualifying Northern Ireland goods’ for the purposes of the EU (Withdrawal) Act 2018.
231.Subsection (7) defines the Protocol for the purposes of new section 8C of the EU (Withdrawal) Act 2018 as including any other provision of the Withdrawal Agreement that relates to the Protocol, and any provisions of EU law applied by, or referred to in, the Protocol, but not the second sentence of Article 11(1) of the Protocol (which provides that the United Kingdom and Ireland may continue to make new arrangements that build on the provisions of the Belfast (Good Friday) Agreement 1998 in other areas of North-‐‑South cooperation on the island of Ireland).
232.This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committees falling within the scope of the particular matters that this power is intended to address.
233.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.
Justification for taking the power
234.As set out above, some parts of the Protocol will flow into domestic law and have direct effect by virtue of new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill), without the need for further implementation. The power in new section 8C(1) is required to give effect to parts of the Protocol which require further implementation.
235.The power in new section 8C(1) is a so called ‘Henry VIII’ power because it will need to amend primary legislation, as well as provide for the practical operation of the framework required to give effect to the Protocol.
236.Furthermore, that power will be required to implement any additions or amendments to the Protocol and its Annexes ensuring continued alignment with relevant EU law where necessary. Amendments to domestic legislation may be required, as the Annexes are updated, or the EU law listed within it is amended.
237.The power in 8C(1) is also capable of amending the EU (Withdrawal) Act 2018. This is required in order to ensure that the power can be used to explain the relationship between the snapshot of EU law which is domesticated at the end of the Implementation Period and the EU law that applies in Northern Ireland as a result of the provisions of the Protocol coming into effect (where Northern Ireland will be required to align with EU law in certain areas). For example, it may be necessary to carve out exceptions to the snapshot at the end of the Implementation Period in order to ensure that the Protocol and the domestic statute book operate effectively.
238.The power in new section 8C(1) is nevertheless naturally constrained to the extent that a Minister of the Crown may only use it to make regulations in connection with the Protocol.
239.The power in new section 8C(6) is a limited power which can only be used by a Minister of the Crown to make regulations to define ‘qualifying Northern Ireland goods’ for the purposes of the EU (Withdrawal) Act 2018. It is required to define that expression for the purposes of the EU (Withdrawal) Act 2018 (into which this section will be inserted) as this expression does not currently have a statutory definition.
Justification for procedure
240.Where the power in new section 8C(1) is used to amend, repeal or revoke primary legislation or retained direct principal EU legislation, the draft affirmative procedure will apply so that Parliament will be required to actively approve any changes. The draft affirmative procedure will also apply where the power is used to establish a public authority; to create, or widen the scope of, a criminal offence; create or amend a power to legislate; in relation to a fee in respect of a function exercisable by a public authority in the UK; or to facilitate access to the market within Great Britain of qualifying Northern Ireland goods.
241.Otherwise, where the power in new section 8C(1) is used, the negative resolution procedure will apply. This is because many of the anticipated modifications will largely consist of amendments to secondary legislation which are required as a result of developments in the EU law that is referenced in the Protocol.
242.The power to define ‘qualifying Northern Ireland goods’ at new section 8C(6) is subject to the affirmative procedure to provide appropriate scrutiny of the proposed legislation.
Clause 22: powers corresponding to section 21 involving devolved authorities
Power conferred on: 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: Yes
Parliamentary Procedure: Draft affirmative procedure where a statutory instrument amends, repeals or revokes primary legislation or retained direct principal EU legislation; establishes a public authority; relates to a fee in respect of a function exercisable by a public authority in the UK; creates, or widens the scope of, a criminal offence; creates or amends a power to legislate or to facilitate access to the market within Great Britain of qualifying Northern Ireland goods. Otherwise the negative procedure applies.
Context and purpose
243.This clause, which inserts a new part into Schedule 2 of the EU (Withdrawal) Act 2018, provides a corresponding power to that at clause 21 for devolved authorities to make regulations to implement the Protocol in areas of devolved competence. This power will be inserted into the EU (Withdrawal) Act 2018 after Part 1B of Schedule 2 as Part 1C, paragraph 11M.
244.Sub-‐‑paragraph (1) provides devolved authorities with the power to make provision which they consider is appropriate for the purposes of implementing the Protocol. This includes supplementing the effect of new section 7A of the EU (Withdrawal) Act 2018 in relation to the Protocol, or dealing with matters arising out of, or related to, the Protocol. This includes giving effect to amendments to the Withdrawal Agreement adopted by the Joint Committee falling within the scope of the particular matters that this power is intended to address.
245.Sub-‐‑paragraph (2) makes provision for a Minister of the Crown acting jointly with a devolved authority to make the same provision as provided for at sub-‐‑paragraph (1).
246.Sub-‐‑paragraph (3) provides that regulations made under this power are capable of doing anything an Act of Parliament can do.
247.Sub-‐‑paragraph (4) clarifies that the power may be used to make provision facilitating the access to the market within Great Britain of qualifying Northern Ireland goods.
248.Sub-‐‑paragraph (5) clarifies that regulations made in connection with subparagraph (4) may, among other things, provide for the recognition within Great Britain of technical regulations, assessments, registrations, certificates, approvals and authorisations issued by the authorities of a Member State or bodies established in a Member State in respect of qualifying Northern Ireland goods.
249.Sub-‐‑paragraph (6) clarifies that the power can be used to restate elements of the Protocol that automatically become domestic law via new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill). This type of restatement can occur where it would be helpful to provide clarity or to make the law more accessible.
250.Sub-‐‑paragraph (7) makes the use of this power subject to the provisions of paragraph 11N (restricting the power to being exercisable only in areas of devolved competence) and paragraph 11O (applying paragraphs 5 to 7 of the Schedule, concerning certain requirements for consent, joint exercise or consultation, to this power).
251.Sub-‐‑paragraph (8) defines the Protocol as including any other provision of the Withdrawal Agreement that relates to the Protocol, and any provisions of EU law applied by or referred to in the Protocol, but not the second sentence of Article 11(1) of the Protocol (which provides that the United Kingdom and Ireland may continue to make new arrangements that build on the provisions of the Belfast (Good Friday) Agreement 1998 in other areas of North-‐‑South cooperation on the island of Ireland).
252.This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committees falling within the scope of the particular matters that this power is intended to address.
253.Paragraph 11N confirms that a devolved authority acting alone can only make provision under this power if the provision is within its devolved competence, as defined in paragraphs 11P to 11R.
254.The restriction applied to the power regarding the devolved settlements has been applied following engagement with the Scottish and Welsh Governments.
Justification for taking the power
255.The power is required to enable devolved authorities to make regulations for the purpose of implementing the Protocol and supplementing the effect of new section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill) in areas of devolved competence. To do otherwise would prevent the devolved authorities from being able to make the required provision falling within their areas of competence to implement the Protocol.
Justification for procedure
256.Where the power at new paragraph 11M is used to modify primary legislation or retained direct principal EU legislation, the draft affirmative procedure will apply to provide appropriate scrutiny of the proposed legislation. For the same reason, the draft affirmative procedure will also apply where the power is used to establish a public authority; to create, or widen the scope of, a criminal offence; create or amend a power to legislate; in relation to a fee in respect of a function exercisable by a public authority in the UK; or to facilitate access to the market within Great Britain of qualifying Northern Ireland goods. The approach to the procedure attached to powers contained in the Bill which are conferred on the devolved authorities has been discussed in the wider context of the Bill with the devolved administrations.
257.Otherwise, where the power at new paragraph 11M is used, the negative resolution procedure will apply. This is because many of the anticipated modifications will largely consist of amendments to secondary legislation which are required as a result of developments in the EU law that is referenced in the Protocol.
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