Clause 18: Main power in connection with other separation issues

232This clause, inserted as new section 8B of the EU (Withdrawal) Act 2018, provides Ministers of the Crown with a power to implement the Other Separation Issues, which form Part 3 of the Withdrawal Agreement and Part 3 of the EEA EFTA Separation Agreement. Ministers can only use this power in connection with those Parts. It is designed to enable implementation of the Other Separation Issues in domestic law and to supplement the effect of new section 7A and new section 7B.

233Subsection (1) provides Ministers with the power to make legislative changes which they consider appropriate for the purposes of implementing Part 3 of the Withdrawal Agreement. This includes supplementing the effect of the new section 7A of the EU (Withdrawal) Act 2018 in relation to Part 3, or dealing with matters arising out of, or related to, Part 3. This includes giving effect to amendments to the Withdrawal Agreement adopted by the Joint Committee in relation to Part 3.

234Subsection (2) provides Ministers with an equivalent power to make legislative changes which they consider appropriate for the purposes of implementing Part 3 of the EEA EFTA Separation Agreement. This includes supplementing the effect of the new section 7B of the EU (Withdrawal) Act 2018 in relation to Part 3, or dealing with matters arising out of, or related to, Part 3.

235Subsection (3) provides that secondary legislation made under this power is capable of doing anything an Act of Parliament can do, subject to the restrictions specified in subsection (5).

236Subsection (4) clarifies that the power can be used to restate elements of Part 3 of the Withdrawal Agreement and of the EEA EFTA Separation Agreement that automatically become domestic law via the new section 7A and 7B. This type of restatement can be made where it would be helpful to provide clarity or to make the law more accessible.

237Subsection (5) places a series of restrictions on the power, stating what it cannot do. 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, repeal or revoke the Human Rights Act 1998 (nor legislation made under it), or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998 (unless the regulations are made by virtue of paragraph 21(b) of Schedule 7 to the EU (Withdrawal) Act 2018 or are amending or repealing any provision of those Acts which modifies another enactment).

238Subsection (6) defines references to Part 3 of the Withdrawal Agreement and of the EEA EFTA Separation Agreement as including references to any provisions of EU law applied by or referred to in that Part.

239The scrutiny procedures for this power are set out in Schedule 5.

Clause 19: Corresponding powers involving devolved authorities

240A new Part 1B inserted into Schedule 2 of the EU (Withdrawal) Act 2018 provides a corresponding power for the devolved authorities to implement Part 3 of the Withdrawal Agreement and of the EEA EFTA Separation Agreement. New paragraph 11G, subsections (1) to (4), set out that this power can be used by devolved authorities acting alone, or by Ministers of the Crown and devolved authorities acting jointly.

241This power can be used for the same purposes as the power at new section 8B and the same restrictions apply, subject to paragraphs 11H and 11I.

242Paragraph 11H provides that the power to implement Part 3 of the Withdrawal Agreement and of the EEA EFTA Separation Agreement cannot be used outside of devolved competence, as defined in paragraphs 11J to 11L, where exercised by devolved authorities acting alone.

243Paragraph 11I provides that, where a devolved authority is making a provision for the purposes of implementing Part 3 of the Withdrawal Agreement or of the EEA EFTA Separation Agreement, the requirements for consent, joint exercise or consultation with the UK Government will apply where the type of provision would, if made under other powers, require UK Government consent, consultation or joint exercise of powers.

Clause 20: Financial Provision

244This clause is necessary to allow for payments to be made to the EU for the purposes of complying with any Withdrawal Agreement obligations.

245Subsection (1) allows payments to be made from the Consolidated Fund (or from the National Loans Fund if so directed by the Treasury) for the purposes of complying with payment obligations provided for in the Withdrawal Agreement (i.e. all obligations under the Withdrawal Agreement to make payments to the EU or an EU entity, its institutions and projects). The authority to make payments is in the form of a standing service provision.

246Subsection (2) provides that payments authorised under the standing service provision at subsection (1) will cease on 31 March 2021, with the exception of sums relating to the traditional own resources of the EU.

247Subsection (3) requires that all sums due to the UK as a result of the Withdrawal Agreement (e.g. the reimbursement to the UK of the paid-in subscribed capital of the European Investment Bank) and received by a Minister of the Crown or a government department are to be paid into the Consolidated Fund, or if the Treasury so determines, the National Loans Fund. Sums received by other recipients (such as businesses, universities or local authorities) from the EU are not captured by this requirement.

248Subsection (4) authorises expenditure by a Minister of the Crown, government department or devolved authority in anticipation of the exercise of a power to make subordinate legislation conferred or modified by or under the Bill.

249Subsection (5) is a general proposition that expenditure under the Bill is to be paid out of money provided by Parliament, but does not itself authorise release of funds from the Consolidated Fund or National Loans Fund. Subsection (4) is included for reasons of House of Commons procedure.

250Subsection (6) clarifies that subsections (1), (3) and (5) are subject to other enactments. For example, payments required to fulfill the UK’s obligations in relation to the European Development Fund, the European Union Emergency Trust Fund and the Facility for Refugees in Turkey will continue to be paid through a finance authority in the International Development Act 2002. Similarly, where other legislation makes specific provision that requires sums received to be handled differently, these provisions will prevail. Therefore, where EU Regulations applied by the Withdrawal Agreement (for example those governing the management of EU programmes such as the European Regional Development Fund) make specific provisions around the handling of receipts from the EU, these will continue.

251Subsection (7) is a power for a Minister to alter the date in subsection (2) by regulations subject to the affirmative resolution procedure in the House of Commons. Further information about procedure is outlined at Paragraph 5, Schedule 5.

252Subsection (8) provides definitions of the terminology relevant to this section.

Clause 25: Retention of saved EU law at the end of implementation period

276During the implementation period certain EU rules and regulations will continue to apply in the UK. For this reason, this clause amends the EU (Withdrawal) Act 2018 so that the conversion of EU law into ‘retained EU law’, and the domestication of historic CJEU case law, will now take place at the end of the implementation period.

277Subsection (1)(a) amends section 2 of the EU (Withdrawal) Act 2018 so that the preservation of EU-derived domestic legislation takes effect on IP completion day rather than exit day.

278Subsection (1)(b) removes the definition of EU-derived domestic legislation from section 2 as the term will instead be defined in new section 2(7) of the EU (Withdrawal) Act 2018.

279Subsection (1)(c) inserts further words into section 2(3) of the EU (Withdrawal) Act 2018 providing that the preservation of EU-derived legislation is subject to new section 5A, set out at subsection (5) below.

280Subsection (2) amends the incorporation of direct EU legislation into retained direct EU legislation at section 3 of the EU (Withdrawal) Act 2018.

281Subsection (2)(a) amends section (3)(1) of the Act so that the incorporation of direct EU legislation takes effect on IP completion day instead of exit day.

282Subsection (2)(b)(i) amends the reference to exit day in section 3(2)(a) to IP completion day, so that EU regulations, EU decisions and EU tertiary legislation (now known as delegated and implementing acts) are preserved as they have effect immediately before IP completion day.

283Subsection 2(b)(ii) adds two conditions to the incorporation of EU regulations, EU decisions and EU tertiary legislation, in the form of two insertions to section 3(2)(a).

a.The first, at new subsection (ai), states that, to be retained, any EU regulation, EU decision or EU tertiary legislation must have been applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement, the implementation period. This means that any EU instruments which were not applicable during the implementation period by virtue of Part 4 of the Withdrawal Agreement will not be preserved.

b.The second, at new subsection (bi), excludes from the definition of ‘direct EU legislation’ in section 3 of the EU (Withdrawal) Act 2018, any EU regulation, EU decision or EU Tertiary legislation so far as it has effect or is to have effect by virtue of new sections 7A and 7B. These sections set up a conduit pipe through which provisions of the Withdrawal Agreement (other than Part 4), and the EEA/ EFTA and Swiss Separation Agreements will flow, including any EU regulation, EU decision or EU Tertiary legislation made applicable by the Withdrawal Agreement.

284Subsections (2)(b)(iii) and (iv) work together to remove a condition on the incorporation of EU regulations, EU decisions and EU tertiary legislation at section 3(2)(a) of the EU (Withdrawal) Act 2018. Specifically, section 3(2)(a)(ii) of that Act is omitted, as EU decisions addressed only to a Member State other than the UK will not be applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement. Therefore, section 3(2)(ai) will instead prevent such decisions from being retained.

285Subsection (2)(c) amends section 3(2)(b) of the EU (Withdrawal) Act 2018 which incorporates Annexes to the EEA Agreement.

a.(2)(c)(i) amends section 3(2)(b) of the Act so as to save any Annex to the EEA Agreement as it has effect immediately before IP completion day rather than exit day.

b.(2)(c)(ii) amends section 3(2)(b) of the Act so that the Annexes are only saved insofar as they have been applicable to and in the UK by virtue of the Part 4 of the Withdrawal Agreement, and not to the extent that they continue to flow into the UK via the pipeline established in new section 7A or 7B.

286Subsection (2)(d) makes the corresponding amendments to section 3(2)(c) of the EU (Withdrawal) Act 2018 with regards to Protocol 1 of the EEA Agreement. It amends that section so as to incorporate the Protocol as it has effect immediately before IP completion day rather than exit day. It also inserts two subsections which:

a.specify that the Protocol is only saved insofar as it has been applicable to and in the UK by virtue of the Part 4 of the Withdrawal Agreement; and

b.ensure that the Protocol is not saved insofar as it is to continue to flow into the UK by virtue of the conduit pipes at new Sections 7A and 7B.

287Subsection (2)(e) amends section 3(3) of the EU (Withdrawal) Act 2018 so as to define what it means for direct EU legislation to be operative immediately before IP completion day rather than exit day.

288Subsection (2)(f) makes section 3 of the EU (Withdrawal) Act 2018 subject to new section 5A (savings and incorporation: supplementary) as well as to section 5 and Schedule 1.

289Subsection (3) amends section 4 of the EU (Withdrawal) Act 2018.

a.(3)(a) amends references in section 4(1) so that any remaining EU rights and obligations which do not fall within sections 2 and 3 of the Act are preserved as they had effect immediately before IP completion day rather than exit day.

b.(3)(b)(i) inserts a new subsection (aa) to section 4(2) so as to make an exception to the saving of the remaining rights and obligations where they will continue to flow into domestic law directly by virtue of new sections 7A or 7B, for the purposes of the Agreements.

c.(3)(b)(ii) amends the reference to ‘exit day’ to ‘IP completion day’ in section 4(2)(b) of the EU (Withdrawal) Act 2018 so that rights, powers, liabilities, obligations, restrictions, remedies or procedures are not saved under section 4(1) of the Act so far as they arise under an EU Directive and are not recognised by the European Court of Justice or any court or tribunal in the UK in a case decided before IP completion day.

290Subsection (3)(c) amends section 4 of the EU (Withdrawal) Act 2018 so it is subject to new section 5A (savings and incorporation: supplementary).

291Subsection (4) amends section 5 of the EU (Withdrawal) Act 2018 on Exceptions to savings and incorporation.

292Subsection (4)(a) amends that section so that the exceptions to the savings and incorporation operate on IP completion day rather than on exit day.

293Subsection(4)(b) inserts new subsection (7) into section 5 of the EU (Withdrawal) Act 2018. The new subsection ensures that the exceptions to the savings and incorporation set out in section 5 (1) to(6) and in Schedule 1 to that Act, do not apply in relation to relevant separation agreement law as provided for by new section 7C.

294Subsection (5) inserts a new section 5A to the EU (Withdrawal) Act 2018. New section 5A is designed to make clear that the law saved and incorporated by sections 2 to 4 of the EU (Withdrawal) Act 2018 continues to have effect on and after IP completion day, despite the fact that the law only applied for the duration of the implementation period under the Withdrawal Agreement.

295Subsection (6) amends Schedule 1 of the EU (Withdrawal) Act 2018, on further provision about exceptions to savings and incorporation. Subsection (6)(a) amends that Schedule so that the exceptions to the preservation of retained EU law take effect on IP completion day, rather than exit day. Subsection (6)(b) makes sure that references to the principle of the supremacy of EU law, the Charter of Fundamental Rights, any general principle of EU law or the rule in Francovich are to be read as references to that principle, Charter or rule so far as it would otherwise continue to be, or form part of, domestic law on or after IP completion day by virtue of the named provisions of the (amended) EU (Withdrawal) Act 2018.

Clause 26: Interpretation of retained EU law and relevant separation agreement law

296This clause defines the term ‘relevant separation agreement law’ and provides for rules of interpretation in order to ensure that as far as they are applicable, that body of law is interpreted in accordance with the withdrawal agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.

297Subsection (1) amends section 6 of the EU (Withdrawal) Act 2018 on the interpretation of retained EU law. Specifically:

a.subsection (1)(a) substitutes references to ‘exit day’ to ‘IP completion day’, so that retained EU law, and its accompanying rules of interpretation, come into force on IP completion day; and

b.subsection (1)(b) inserts a new section 6A after subsection 6, which makes clear that subsections (1) to (6) of section 6 are subject to new section 7C, which is set out below.

298Subsection (2) inserts a new section 7C after new section 7B of the EU (Withdrawal) Act 2018.

299New section 7C(1)(a) states that any question concerning the validity, meaning or effect of any relevant separation agreement law is to be decided in accordance with the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (so far as they are applicable to it). New section 7C(1)(b) provides that regard should be had to the desirability of ensuring that the effect of relevant separation agreement law in relation to matters dealt with by corresponding provisions amongst the Agreements is consistent.

300New section 7C(2) provides references to relevant provisions of each of the Agreements regarding the interpretation of relevant separation agreement law.

301New section 7C(3) defines ‘relevant separation agreement law’. This includes domestic provisions implementing the Agreements and anything which is domestic law by virtue of those provisions (subsection (a)) – either because it flows into domestic law by virtue of the new section 7A and 7B conduit pipes or is made in exercise of the powers listed in new section 7C(3)(a) – and anything else which is domestic law for the purposes of, or otherwise within the scope of the Agreements (subsection (b)), with the exception of Part 4 of the Withdrawal Agreement, which is legislated for separately (that legislation being repealed, in the main, on IP completion day).

Clause 27: Dealing with deficiencies in retained EU law

302EU law will generally apply in the UK until the end of the implementation period. The Bill therefore amends the EU (Withdrawal) Act 2018 so that the conversion of EU law into ‘retained EU law’, and the domestication of historic CJEU case law, can take place at the end of the implementation period. It also amends the deficiencies power at section 8 of the EU (Withdrawal) Act 2018 so that it will still work in light of the implementation period.

303This clause amends the power at section 8 of the EU (Withdrawal) Act 2018 to extend it so that it can operate on deficiencies that result from Part 4 of the Withdrawal Agreement or the end of the implementation period. It is necessary to do this because the power will need to operate on ‘retained EU law’ as it stands at the end of the implementation period.

304Subsection (1) establishes that this section will amend the section 8 power of the EU (Withdrawal) Act 2018.

305Subsection (2) amends section 8(2) of the EU (Withdrawal) Act 2018 so that the power is available to correct deficiencies arising from withdrawal and the end of the implementation period. This subsection establishes the circumstances in which deficiencies in retained EU law can arise, and therefore which the power provided at section (8)(1) can work upon. This includes:

a.amendments to section 8(2)(d)(ii) to enable it to deal with deficiencies arising from any arrangements that are dependent upon the UK’s membership of the EU or Part 4 of the Withdrawal Agreement and no longer exist or are no longer appropriate;

b.amendments to section 8(2)(e) to enable it to deal with deficiencies arising from provisions on reciprocal or other arrangements between the UK and other EU Member States that are no longer in place or are no longer appropriate as a result of the UK ceasing to be a party to any of the EU Treaties or as a result of the implementation period agreement;

c.the inclusion of an additional deficiency which the section 8 power can operate upon, where retained EU law is not clear in its effect as a result of uncertainty from the saving and exceptions to EU law in sections 2 to 6 and Schedule 1 of the EU (Withdrawal) Act 2018, which includes the glosses applied during the implementation period (subsection (2)(c)); and

d.amendments to section 8(2)(f)(i) of the EU (Withdrawal) Act 2018 so that the deficiencies power can be used where elements of directives have not been implemented into UK domestic law by IP completion day, but it is nonetheless appropriate to retain them.

306Subsection (3) amends section 8(4) of the EU (Withdrawal) Act 2018 to substitute the reference to ‘exit day’ to ‘IP completion day’. This ensures that retained EU law will not be deficient just because the EU subsequently makes changes to EU law when it no longer applies in the UK by virtue of Part 4 of the Withdrawal Agreement. The subsequent divergence between UK and EU law will not therefore by itself make domestic law deficient.

307Subsection (4) removes the restriction on the deficiencies power being used to implement the Withdrawal Agreement at section 8(7)(e) of the EU (Withdrawal) Act 2018. For example, this means the power could be re-exercised to revoke deficiencies SIs due to come into force at the end of the implementation period if they would breach provisions of the Withdrawal Agreement that will apply after the end of the implementation period, such as the arrangements on citizens’ rights.

308Subsection (5) extends the sunset on the deficiencies power at section 8(8) so that it will expire two years after the end of the implementation period rather than two years after exit day. The existing sunset would allow the government limited time following IP completion day to identify and correct deficiencies with this power. It is possible that some deficiencies will only become apparent after the conversion of EU law has taken place and time will be needed to make the necessary legislation to fix them.

309Subsection (6) clarifies that a deficiency ‘arising from the withdrawal of the United Kingdom from the EU’ in section 8(1) of the EU (Withdrawal) Act 2018 includes within its definition deficiencies which arise from the end of the implementation period or any other effect of Part 4 of the Withdrawal Agreement.

310Further, subsection (6) provides that the meaning of deficiency can cover a deficiency that arises out of withdrawal taken together with the operation of, or interaction between, provisions of the EU (Withdrawal) Act 2018 or this Bill.

311Subsection (7) substitutes references to ‘exit day’ across Part 1 of Schedule 2 of the EU (Withdrawal) Act 2018 to ‘IP completion day’. Part 1 of Schedule 2 provides the devolved authorities, and a Minister of the Crown acting jointly with a devolved authority, with power corresponding to the power in section 8 of that Act. The references to ‘exit day’ in paragraph 4(a), 8(2)(a)(i), 9(2)(a)(i) and 10(2)(a)(i) of Schedule 2 are amended to ‘IP completion day’ as a result of the implementation period.

Clause 28: Ancillary fee-charging powers

312Amendments to Schedule 4 of the EU (Withdrawal) Act 2018 allow the fee-charging powers that already exist under that Act to also be used in connection with the Other Separation Issues, and the Protocol on Ireland/Northern Ireland.

313This allows appropriate authorities that have been given functions under new sections 8B and section 8C (or the corresponding powers for the devolved authorities at new Part 1B and Part 1C of Schedule 2) to make provision in connection with fees or other charges. Regulations made under these powers which do not relate to the altering of a fee or charge to reflect changes in the value of money are subject to the affirmative procedure. Otherwise, the negative procedure applies. The time limit for existing powers in the EU (Withdrawal) Act 2018 does not apply here.

Clause 29: Review of EU legislation during implementation period

314This clause will be insert a new section 13A into the EU (Withdrawal) Act 2018. It provides additional parliamentary scrutiny for new EU legislation that is made or may be made during the implementation period.

315Subsection (2) provides that a Minister must make arrangements for a motion to be debated and voted on within 14 days where a report is published by the European Scrutiny Committee (‘ESC’) which meets certain requirements.

316Subsection (1) describes these requirements, namely that: it is the view of the ESC that any EU legislation that is made, or may be made, during the implementation period raises a matter of vital national interest to the UK; that the ESC has taken account of appropriate evidence and consulted departmental select committees ; and that the report sets out the wording of a resultant motion to be moved in the House of Commons.

317For the purposes of this clause, legislation ‘made or which may be made’ during the implementation period is intended to mean legislation that has been entered into the Official Journal of the European Union or which may be entered into the Official Journal of the European Union during the implementation period.

318Sub-section (3) sets out definitions for terms in this clause.

Clause 32: Repeal of section 13 of the EU (Withdrawal) Act 2018

334Section 13 of the EU (Withdrawal) Act 2018 sets out the process for ‘Parliamentary approval of the outcome of negotiations with the EU’It provides that the Withdrawal Agreement may only be ratified if the House of Commons has approved, by resolution, the negotiated Withdrawal Agreement and the framework for the future relationship, a take note motion has been tabled in the House of Lords, so that both documents can be debated, and an Act of Parliament has been passed which contains provision implementing the Agreement.

335Subsection (1) of clause 32 repeals section 13 of EU (Withdrawal) Act 2018, to ensure that the Withdrawal Agreement can be ratified in a timely and orderly manner, and to remove provisions that are no longer needed.

336Further, subsection (2) clarifies that the specific conditions set out in section 13(1)(a) to (d) therefore do not apply before ratification of the Withdrawal Agreement. While the condition in section 1(d) is removed, the Bill still implements the Withdrawal Agreement, as is required for the Withdrawal Agreement to have domestic legal effect. The Bill is also required before the UK Government can ratify the Withdrawal Agreement and then leave the EU.

Clause 33: Requirements in Part 2 of CRAG

337Section 20 of the Constitutional Reform and Governance Act 2010 sets out certain conditions that must be met before treaties can be ratified. These are that: a Minister of the Crown has laid before Parliament a copy of the treaty, the treaty has been published, and the relevant period (21 sitting days) has passed without either House having resolved that the treaty should not be ratified.

338Clause 33 disapplies section 20 of the Constitutional Reform and Governance Act 2010 in relation to the Withdrawal Agreement. This enables ratification of the Withdrawal Agreement to take place without the conditions of section 20 having been met, and avoids any additional delay that could be created by the 21 day process. The provision does not extend to future modifications of the Withdrawal Agreement agreed by the Joint Committee, to which section 20 may apply.

Clause 36: Parliamentary sovereignty

342Clause 36 addresses the relationship between the constitutional principle of Parliamentary sovereignty and ‘separation agreement law’ as it would apply in the UK after exit day by virtue of the Withdrawal Agreement (WA), EEA separation Agreement and Swiss Citizens’ Rights Agreement. The clause recognises that the application of this separation agreement law through the Withdrawal Agreement Bill does not constitute a derogation from the principle of Parliamentary sovereignty.

343Subsection (1) recognises that, as a matter of common law, the Parliament of the United Kingdom is sovereign.

344As above, clauses 1, 5, 6, and 26 provide for the direct application of the separation agreements in domestic law. Subsection (2) recognises that the principle of Parliamentary sovereignty subsists despite the effect of these clauses.

345Subsection (3) recognises that, accordingly, nothing in the Withdrawal Agreement Bill derogates from the fundamental principle of Parliamentary sovereignty. This proposition flows from the observations established in subsections (1) and (2).

346As such, the clause acknowledges the pre-existing legal position as regards Parliamentary sovereignty.

Clause 39: Consequential and transitional provisions

352Subsection (1) allows a Minister of the Crown to make regulations which are appropriate as a consequence of the Bill.

353Subsection (2) clarifies that consequential provision might include modifying (such as amending, repealing or revoking) both primary and secondary legislation.

354Subsection (3) provides that Ministers cannot make consequential provision which modifies primary legislation (which includes secondary legislation made under that primary legislation) passed after IP completion day.

355Subsection (4) provides that Parts 1 and 2 of Schedule 6 contains minor and consequential provision.

356Subsection (5) allows a Minister of the Crown to make transitional, transitory or saving provision by regulations.

357Subsection (6) provides that Part 3 of Schedule 6 contains transitional, transitory and saving provision.

Clause 40: Extent, commencement and short title

358Subsection (1) provides that the Act extends to the legal jurisdictions of England and Wales, Scotland and Northern Ireland, subject to subsections (2) to (5).

359Subsection (2) provides that any provision of the Bill which amends or repeals an enactment has the same extent as the enactment it is amending or repealing.

360Subsection (3) makes it clear that clause 1 (the saving of the ECA for the implementation period) extends to the Isle of Man, the Channel Islands and Gibraltar.

361Subsection (4) provides that the power in section 36 of the Immigration Act 1971 and section 60(4) of the UK Borders Act 2007 may be exercised to extend to the Channel Islands or Isle of Man the modifications to those Acts made by clause 10.

362Subsection (5) provides that paragraphs 1 to 3 of Schedule 5 extend to Gibraltar in their application to regulations that extend to Gibraltar by virtue of section 24(3) of the EU (Withdrawal) Act 2018.

363Subsection (6) specifies which provisions come into force on Royal Assent.

364Subsection (7) sets out that the remaining provisions will come into force on the day or days appointed by regulations, and different days may be appointed for different purposes.

365Subsection (8) establishes that the short title of the Bill is the European Union (Withdrawal Agreement) Act 2019.

Part 1: General consequential provision

526As set out in the Withdrawal Agreement, the UK will stay closely aligned with the EU for the duration of the implementation period, from exit day until IP completion day. The Bill therefore makes provision for EU exit SIs, which deal with the UK’s withdrawal from the EU, to come into force by reference to IP completion day, so that domestic law does not diverge from EU law during the implementation period.

527Paragraph 1(1) of this Schedule does this by ‘glossing’ (i.e. non-textually amending) the commencement date for provisions made before exit day under specified powers that are due to come into force on, immediately before or after exit day (such as ‘three months after exit day’). This gloss will provide that they come into force instead at the end of the implementation period, either immediately before, on, or after IP completion day (such as ‘three months after IP completion day’).

528Paragraph 1(1)(a) provides that the deferral affects provisions made under sections 8(1), 23(1), 23(6), paragraph 1(2)(b) of Schedule 1, Part 1 of Schedule 2 and paragraph 1 or 7 of Schedule 4 of the EU (Withdrawal) Act 2018.

529Paragraph 1(1)(b) provides that the deferral also affects provisions made under ‘any relevant enactment’. This is defined in paragraph 1(9) as any enactment specified in regulations made by an appropriate authority and means further powers under which EU exit SIs will be made can be included in the deferral.

530The deferral will affect provisions made under an enactment as amended, including as extended or applied, by or under any other enactment, including any other provision in the same legislation. This will apply whether the enactment is specified in the Bill or by regulations, so under Paragraph 1(1)(a) or (b). For example, where a provision is made under section 8(1) of the EU (Withdrawal) Act 2018 as amended by paragraph 21 of Schedule 7 to that Act, this will be caught by the general rule.

531The general rule will bite where the commencement date is exit day (or immediately before or after exit day, where it is by reference to exit day). Further, the general rule will apply where the commencement date relates to all or part of the subordinate legislation, whether this is the legislation made under the relevant enactment or any other subordinate legislation which it provides for. It will therefore apply to either:

a.the whole statutory instrument if the commencement date for the whole statutory instrument is exit day (or immediately before or at any time after exit day, where it is by reference to exit day);

b.particular provisions of the statutory instrument if there are different commencement dates for different provisions, with some entering into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day), and others entering into force on a different date; or

c.none of the statutory instrument if none of the provisions of the statutory instrument come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day).

532As such, the general rule will not affect provisions in statutory instruments that do not come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day). Further, whilst the general rule will bite on references to exit day ‘however expressed’, it will not bite on provisions which happen to fall on that day and/or time.

533Paragraph (2) allows subordinate legislation to expressly disapply this gloss where required. This means regulations requiring exception that are laid alongside the Bill can specifically provide for this.

534Paragraph (3) contains the power for an appropriate authority to specify an enactment as a relevant enactment for the purposes of sub-paragraph (1), i.e. to extend the gloss of ‘exit day’ to ‘IP completion day’ to commencement of subordinate legislation made using further powers. An appropriate authority is defined in paragraph 1(8) as a Minister of the Crown, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority. This is necessary in cases where departments or devolved authorities have made EU exit SIs under powers other than those listed in sub-paragraph (1). Paragraph (4) makes technical clarifications about the extent of what the power at paragraph 1(3) may be used for.

535Sub-paragraph 1(5) contains a power for an appropriate authority (as defined in sub-paragraph 1(8)) to make exceptions to the mass deferral, by disapplying or making different provision from the mass deferral in particular cases. For example, a Minister of the Crown, devolved authority or Minister of the Crown acting jointly with a devolved authority could exempt a statutory instrument fixing a deficiency under section 8(1) of the EU (Withdrawal) Act 2018 from the mass deferral, to provide that it will still come into force on exit day, where this is deemed appropriate.

536Sub-paragraph (6) refers the user to paragraphs 2 and 3 of this Schedule for further provision about the power of devolved authorities to make regulations under sub-paragraph 1(3) and (5).

537Sub-paragraph (7) sunsets the use of the powers in sub-paragraphs 1(3) and (5) at one year after IP completion day, defined as 31 December 2020 in clause 37.

538Sub-paragraph (8) defines ‘appropriate authority’ as a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.

539Sub-paragraph (9) defines ‘relevant enactment’ as an enactment specified by the power to specify such enactments contained in sub-paragraph 1(3).

540Paragraph 2 provides that a devolved authority acting alone under the power contained in sub-paragraph 1(3) may only specify enactments so far as that enactment permits the making of subordinate legislation by a devolved authority acting alone, or by another person in circumstances in which the devolved authority is also permitted to make that subordinate legislation acting alone. Sub-paragraph 2(2) provides that any requirement for consultation or consent with a Minister of the Crown under the enactment to be specified, which would be applicable to the making of subordinate legislation producing the same result as that produced by the specification, is also applicable to making regulations to specify the enactment.

541Paragraph 3 provides that a devolved authority acting alone under the power in paragraph 1(5) may not make provision in respect of regulations under the powers specified in paragraph 1(1)(a), or under powers in any relevant enactment, where the result is not a result which they could have produced acting alone under those powers. In certain cases where the result produced would otherwise have required the consent of a Minister of the Crown, or required the provision to be made by a Minister of the Crown and a devolved authority jointly, such consent or joint exercise is also required under the power in paragraph 1(5). In all other cases, a devolved authority may not make provision under paragraph 1(5) unless they have consulted a Minister of the Crown.

542Paragraph 4 makes the same provision as paragraph 1 but for primary legislation made by devolved authorities in preparation for exit day under the provisions in paragraph 41(3) to (5) of Schedule 8 to the EU (Withdrawal) Act 2018. Those provisions were commenced after the Supreme Court judgment in ‘The UK Withdrawal From the European Union (Legal Continuity)(Scotland) Bill’ reference, which decided that the Scottish Parliament had competence to legislate in preparation for EU exit because the requirement to legislate compatibly with EU law would cease on a specific date. The provisions in this Bill include the gloss of ‘exit day’ to ‘IP completion day’; the power to disapply or make different provision to the deferral; as well as the power to make appropriate provision, including re-stating the commencement date of such an enactment. Subparagraphs (3) to (6) clarify that these powers can modify provisions in primary legislation as well as secondary legislation and that devolved authorities cannot use it outside of legislative competence.

543Paragraph 5(1) clarifies that the consequential power in section 23(1) of the EU (Withdrawal) Act 2018 is capable of making consequential provision on the Act as amended (or to be amended) by or under the Bill. Further, it clarifies that references in the EU (Withdrawal) Act 2018 to the consequential power are read accordingly. Subparagraph (2) clarifies that subparagraph (1) does not limit the scope of the consequential power in clause 39(1) of this Bill. Subparagraph (3) clarifies that this includes amendments to provisions of EUWA which make amendments to other legislation.

 

Part 2: Procedure

518Part 2 of Schedule 5 makes general provision in respect of the scope and nature of the powers contained in the Bill.

519Paragraph 12 provides that powers to make regulations in the Bill are exercisable by statutory instrument (where exercised by a Minister of the Crown, by a Welsh minister or by a Minister of the Crown acting jointly with a devolved authority) and by statutory rule (where the powers are exercised by a Northern Ireland department alone). Regulations made by Scottish ministers acting alone will be made by Scottish statutory instrument, as provided for by section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010.

520Paragraph 13 clarifies the scope of the powers in the Bill by providing that all the powers in the Bill can be used to make different provision for different cases or descriptions of case, in different circumstances, areas or for different purposes and include the power to make supplementary etc provision.

521Paragraph 14 provides that powers in the Bill may overlap without that overlap impacting on the scope of each of the powers.

522Paragraph 15 provides that powers in the Bill regarding the Agreements can be exercised before the Agreements are ratified so that the regulations can come into force on or after the day the agreement is ratified.

523Paragraph 16 clarifies that the power for Ministers to commence certain parts of the Bill, as provided for by section 43(7), includes the power to specify the time of day these parts of the Bill come into force.

524Paragraph 17 sets out that regulations brought forward under the powers in this Bill are never to be treated as hybrid instruments. Some statutory instruments which need to be approved by both Houses (affirmative instruments) are ruled to be hybrid instruments because they affect some members of a group (be it individuals or bodies) in a manner different from others in the same group.

525Paragraph 18 makes provision for what happens when instruments are combined.

Part 1: Procedure

503Part 1 of this Schedule sets out the parliamentary procedures attaching to the regulations laid under the various powers in the Bill.

504Sub-paragraphs 1(1) and (2) set out the procedures for regulations under clause 7 (rights related to residence: deadline for applications and temporary protection); clause 8 (frontier workers); and clause 9 (restrictions of rights of entry and residence). Sub-paragraph 1(1) provides that the first regulations under clause 7 (1)(b) to (g), 8(1), or 9, and regulations under clause 7, 8 or 9 which amend repeal or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Sub-paragraph (2) provides that any other regulations made under clause 7, 8 or 9 shall be subject to the negative resolution procedure.

505Sub-paragraph 2(1) sets out the procedure that will apply to the first regulations made under clause 11 (appeals against citizens’ rights immigration decisions). The procedure that shall apply to the first set of regulations made under clause 11 is the made affirmative procedure. Sub-paragraph (2) provides that subsequent regulations made under clause 11 that amend repeal or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Sub-paragraph (3) provides that any other regulation made under clause 11 is subject to the negative resolution procedure. Sub-paragraphs (4) and (5) set out in further detail the operation of the made affirmative procedure.

506Sub-paragraphs 3(1) and (2) set out the procedures that apply to regulations made by a Minister of the Crown under clause 12 (recognition of professional qualifications); clause 13 (coordination of social security systems); and clause 14 (non-discrimination, equal treatment and rights of workers etc). Sub-paragraph (1) provides that regulations made by a Minister of the Crown under clauses 12, 13, or 14 that amend, repeal or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Sub-paragraph (2) provides that any other regulations made by a Minister of the Crown under clauses 12, 13, or 14 are subject to the negative resolution procedure.

507Sub-paragraphs (3) and (4) set out the procedures that apply to regulations made by a Scottish Minister under clause 12 (recognition of professional qualifications); clause 13 (coordination of social security systems); and clause 14 (non-discrimination, equal treatment and rights of workers etc). Sub-paragraph (3) provides that regulations made by a Scottish Minister under clause 12, 13, or 14 that amend, repeal, or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Sub-paragraph (4) provides that other regulations made by a Scottish Minister under clause 12, 13, or 14 are subject to the negative resolution procedure.

508Sub-paragraphs (5) and (6) set out the procedures that apply to regulations made by a Welsh Minister under clause 12 (recognition of professional qualifications); clause 13 (coordination of social security systems); and clause 14 (non-discrimination, equal treatment and rights of workers etc). Sub-paragraph (5) provides that regulations made by a Welsh Minister under clause 12, 13, or 14 that amend, repeal, or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Sub-paragraph (6) provides that other regulations made by a Welsh Minister under section 12, 13, or 14 are subject to the negative resolution procedure.

509Sub-paragraphs (7) and (8) set out the procedures that apply to regulations made by a Northern Ireland department under clause 12 (recognition of professional qualifications); clause 13 (coordination of social security systems); and clause 14 (non-discrimination, equal treatment and rights of workers etc). Sub-paragraph (7) provides that regulations made by a Northern Ireland department under clause 12, 13, or 14 that amend, repeal, or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Sub-paragraph (8) provides that other regulations made by a Northern Ireland department under clause 12, 13, or 14 are subject to the negative resolution procedure.

510Paragraph 4 sets out the procedures that apply to regulations made under clause 12 (recognition of professional qualifications); clause 13 (coordination of social security systems); and clause 14 (non-discrimination, equal treatment and rights of workers etc) by a Minister of the Crown acting jointly with a devolved authority. Paragraph 4 provides that regulations made by a Minister of the Crown acting jointly with a devolved authority that amend, repeal, or revoke primary legislation or retained direct principal EU legislation are subject to the draft affirmative procedure. Any other regulations made jointly are subject to the negative resolution procedure. Equivalent affirmative and negative procedures in the devolved legislatures are applicable to the devolved authorities.

511Paragraph 5 sets out that the draft affirmative procedure applies to a statutory instrument made under section 20(7) to change the date of the sunset on the standing service provision in section 20(2).

512Paragraph 6 sets out the procedure that applies to regulations made under clause 40(4) to amend the definition of ‘IP completion day’. Regulations made under this power are subject to the negative resolution procedure, both for amendments to IP completion day in accordance with the Withdrawal Agreement i.e. when a decision to extend the implementation period for up to two years has been approved by the Joint Committee, and for any amendments required to IP completion day to take account of changes to EU summertime arrangements.

513Paragraph 7 establishes that regulations made under clause 39(1) for consequential provision are to be made under the negative procedure.

514Paragraph 8 sets out the procedure that applies to regulations made under paragraph 38 of Schedule 2 (removal of IMA’s functions), which is the draft affirmative procedure.

515Paragraph 9 applies to the powers in paragraph 1(3) and (5) of Schedule 6 of the Bill which allow a Minister of the Crown or devolved authority to include additional powers in the general rule which defers EU exit SIs (i.e. the ‘mass deferral’) and to make exceptions from the mass deferral. Where a Minister of the Crown, the Scottish Ministers, Welsh Ministers or a Northern Ireland department are exercising these powers before exit day, the regulations will be subject to no procedure. Where the powers are being exercised on or after exit day, the regulations will be subject to the negative procedure.

516Paragraph 10 applies to the powers in sub-paragraphs 1(3) and (5) of Schedule 6 of the Bill where they are being exercised jointly by a Minister of the Crown and a devolved authority. Where the powers are exercised jointly before exit day, the regulations will be subject to no procedure. Where the powers are being exercised jointly on or after exit day, the regulations will be subject to the negative procedure.

517Paragraph 11 sets out that regulations made by Scottish Ministers, Welsh Ministers or Northern Ireland departments under paragraph 4(2) of Schedule 6 are subject to the negative procedure in the respective legislatures.

Part 1: General consequential provision

526As set out in the Withdrawal Agreement, the UK will stay closely aligned with the EU for the duration of the implementation period, from exit day until IP completion day. The Bill therefore makes provision for EU exit SIs, which deal with the UK’s withdrawal from the EU, to come into force by reference to IP completion day, so that domestic law does not diverge from EU law during the implementation period.

527Paragraph 1(1) of this Schedule does this by ‘glossing’ (i.e. non-textually amending) the commencement date for provisions made before exit day under specified powers that are due to come into force on, immediately before or after exit day (such as ‘three months after exit day’). This gloss will provide that they come into force instead at the end of the implementation period, either immediately before, on, or after IP completion day (such as ‘three months after IP completion day’).

528Paragraph 1(1)(a) provides that the deferral affects provisions made under sections 8(1), 23(1), 23(6), paragraph 1(2)(b) of Schedule 1, Part 1 of Schedule 2 and paragraph 1 or 7 of Schedule 4 of the EU (Withdrawal) Act 2018.

529Paragraph 1(1)(b) provides that the deferral also affects provisions made under ‘any relevant enactment’. This is defined in paragraph 1(9) as any enactment specified in regulations made by an appropriate authority and means further powers under which EU exit SIs will be made can be included in the deferral.

530The deferral will affect provisions made under an enactment as amended, including as extended or applied, by or under any other enactment, including any other provision in the same legislation. This will apply whether the enactment is specified in the Bill or by regulations, so under Paragraph 1(1)(a) or (b). For example, where a provision is made under section 8(1) of the EU (Withdrawal) Act 2018 as amended by paragraph 21 of Schedule 7 to that Act, this will be caught by the general rule.

531The general rule will bite where the commencement date is exit day (or immediately before or after exit day, where it is by reference to exit day). Further, the general rule will apply where the commencement date relates to all or part of the subordinate legislation, whether this is the legislation made under the relevant enactment or any other subordinate legislation which it provides for. It will therefore apply to either:

a.the whole statutory instrument if the commencement date for the whole statutory instrument is exit day (or immediately before or at any time after exit day, where it is by reference to exit day);

b.particular provisions of the statutory instrument if there are different commencement dates for different provisions, with some entering into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day), and others entering into force on a different date; or

c.none of the statutory instrument if none of the provisions of the statutory instrument come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day).

532As such, the general rule will not affect provisions in statutory instruments that do not come into force on exit day (or immediately before or at any time after exit day, where it is by reference to exit day). Further, whilst the general rule will bite on references to exit day ‘however expressed’, it will not bite on provisions which happen to fall on that day and/or time.

533Paragraph (2) allows subordinate legislation to expressly disapply this gloss where required. This means regulations requiring exception that are laid alongside the Bill can specifically provide for this.

534Paragraph (3) contains the power for an appropriate authority to specify an enactment as a relevant enactment for the purposes of sub-paragraph (1), i.e. to extend the gloss of ‘exit day’ to ‘IP completion day’ to commencement of subordinate legislation made using further powers. An appropriate authority is defined in paragraph 1(8) as a Minister of the Crown, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority. This is necessary in cases where departments or devolved authorities have made EU exit SIs under powers other than those listed in sub-paragraph (1). Paragraph (4) makes technical clarifications about the extent of what the power at paragraph 1(3) may be used for.

535Sub-paragraph 1(5) contains a power for an appropriate authority (as defined in sub-paragraph 1(8)) to make exceptions to the mass deferral, by disapplying or making different provision from the mass deferral in particular cases. For example, a Minister of the Crown, devolved authority or Minister of the Crown acting jointly with a devolved authority could exempt a statutory instrument fixing a deficiency under section 8(1) of the EU (Withdrawal) Act 2018 from the mass deferral, to provide that it will still come into force on exit day, where this is deemed appropriate.

536Sub-paragraph (6) refers the user to paragraphs 2 and 3 of this Schedule for further provision about the power of devolved authorities to make regulations under sub-paragraph 1(3) and (5).

537Sub-paragraph (7) sunsets the use of the powers in sub-paragraphs 1(3) and (5) at one year after IP completion day, defined as 31 December 2020 in clause 37.

538Sub-paragraph (8) defines ‘appropriate authority’ as a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.

539Sub-paragraph (9) defines ‘relevant enactment’ as an enactment specified by the power to specify such enactments contained in sub-paragraph 1(3).

540Paragraph 2 provides that a devolved authority acting alone under the power contained in sub-paragraph 1(3) may only specify enactments so far as that enactment permits the making of subordinate legislation by a devolved authority acting alone, or by another person in circumstances in which the devolved authority is also permitted to make that subordinate legislation acting alone. Sub-paragraph 2(2) provides that any requirement for consultation or consent with a Minister of the Crown under the enactment to be specified, which would be applicable to the making of subordinate legislation producing the same result as that produced by the specification, is also applicable to making regulations to specify the enactment.

541Paragraph 3 provides that a devolved authority acting alone under the power in paragraph 1(5) may not make provision in respect of regulations under the powers specified in paragraph 1(1)(a), or under powers in any relevant enactment, where the result is not a result which they could have produced acting alone under those powers. In certain cases where the result produced would otherwise have required the consent of a Minister of the Crown, or required the provision to be made by a Minister of the Crown and a devolved authority jointly, such consent or joint exercise is also required under the power in paragraph 1(5). In all other cases, a devolved authority may not make provision under paragraph 1(5) unless they have consulted a Minister of the Crown.

542Paragraph 4 makes the same provision as paragraph 1 but for primary legislation made by devolved authorities in preparation for exit day under the provisions in paragraph 41(3) to (5) of Schedule 8 to the EU (Withdrawal) Act 2018. Those provisions were commenced after the Supreme Court judgment in ‘The UK Withdrawal From the European Union (Legal Continuity)(Scotland) Bill’ reference, which decided that the Scottish Parliament had competence to legislate in preparation for EU exit because the requirement to legislate compatibly with EU law would cease on a specific date. The provisions in this Bill include the gloss of ‘exit day’ to ‘IP completion day’; the power to disapply or make different provision to the deferral; as well as the power to make appropriate provision, including re-stating the commencement date of such an enactment. Subparagraphs (3) to (6) clarify that these powers can modify provisions in primary legislation as well as secondary legislation and that devolved authorities cannot use it outside of legislative competence.

543Paragraph 5(1) clarifies that the consequential power in section 23(1) of the EU (Withdrawal) Act 2018 is capable of making consequential provision on the Act as amended (or to be amended) by or under the Bill. Further, it clarifies that references in the EU (Withdrawal) Act 2018 to the consequential power are read accordingly. Subparagraph (2) clarifies that subparagraph (1) does not limit the scope of the consequential power in clause 39(1) of this Bill. Subparagraph (3) clarifies that this includes amendments to provisions of EUWA which make amendments to other legislation.

Part 3: Transitional, transitory and saving provision

599Paragraph 64 makes technical modifications to the new provisions inserted into the Immigration Act 1971 and the UK Borders Act 2007 in order to ensure that these provisions make reference to the correct provisions within the Agreements before the end of the implementation period; and to reflect the fact that the frontier worker and healthcare categories of relevant person will not exist until the end of the implementation period.

600Paragraph 65 specifies certain provisions of the devolution statutes as not applying to the making of regulations under section 12, 13 or 14. It makes clear that section 56(2) of the Scotland Act 1998, Section 80(8) of the Government of Wales Act 2006 and section 24(1)(b) of the Northern Ireland Act 1998, so far as relating to EU law, do not apply to the making of regulations under certain sections of the EU (Withdrawal) Act 2018.

601Paragraph 66(1) makes clear that powers inserted into the EU (Withdrawal) Act 2018 by this Bill, do not affect the scope of other powers in the Act. Paragraph 66(2) makes clear that the modifications made by the Bill to powers to make regulations in the EU (Withdrawal) Act 2018 do not affect the validity of any regulations made under those powers before the coming into force of the modifications. This makes clear that these regulations will not be impliedly revoked due to the power changing. Paragraph 66(3) makes clear that this is subject to transitional, transitory or saving provisions made under the powers in clause 32(5) of the Bill and section 23(6) of the EU (Withdrawal) Act 2018.

602Paragraph 67 makes clear that regulations made under paragraph 1(3) or (5) or 4(2) of this Schedule before they are sunset one year after IP completion day will remain in force after this time, although regulations cannot be made under these powers after that date.

603Paragraph 68(1) provides that the power to make transitional, transitory or saving provision under section 23(6) of the EU (Withdrawal) Act 2018 includes the power to make such provision as the Minister considers appropriate in connection with the coming into force of any provision of that Act as modified by this Bill. Paragraph 68(3) clarifies that this includes modifications to provisions of EUWA which make amendments to other legislation.

604Paragraph 68(2) makes clear that this does not limit the power to make transitional, transitory or saving provision under clause 32(5) of this Bill. It also makes clear that the power under section 25(4) of the EU (Withdrawal) Act 2018 to bring into force provisions of that Act does not apply to modifications made to that Act by this Bill.

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