Moved by
Lord Callanan
111: Schedule 8, page 55, line 33, leave out paragraph 3 and insert—
“3A(1) Any power to make, confirm or approve subordinate legislation which—
(a) was conferred before the day on which this Act is passed, and
(b) is capable of being exercised to amend or repeal (or, as the case may be, result in the amendment or repeal of) an enactment contained in primary legislation,
is to be read, so far as the context permits or requires, as being capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct EU legislation or anything which is retained EU law by virtue of section 4.
(2) But sub-paragraph (1) does not apply if the power to make, confirm or approve subordinate legislation is only capable of being exercised to amend or repeal (or, as the case may be, result in the amendment or repeal of) an enactment contained in Northern Ireland legislation which is an Order in Council.
3B_(1) Any subordinate legislation which—
(a) is, or is to be, made, confirmed or approved by virtue of paragraph 3A, and
(b) amends or revokes any retained direct principal EU legislation,
is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were amending or repealing an enactment contained in primary legislation.
(2) Any subordinate legislation which—
(a) is, or is to be, made, confirmed or approved by virtue of paragraph 3A, and
(b) either—
(i) modifies (otherwise than as a connected modification and otherwise than by way of amending or revoking it) any retained direct principal EU legislation, or
(ii) modifies (otherwise than as a connected modification) anything which is retained EU law by virtue of section 4 ,
is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were amending or repealing an enactment contained in primary legislation.
(3) Any subordinate legislation which—
(a) is, or is to be, made, confirmed or approved by virtue of paragraph 3A, and
(b) amends or revokes any retained direct minor EU legislation,
is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were amending or revoking an enactment contained in subordinate legislation made under a different power.
(4) Any subordinate legislation which—
(a) is, or is to be, made, confirmed or approved by virtue of paragraph 3A, and
(b) modifies (otherwise than as a connected modification and otherwise than by way of amending or revoking it) any retained direct minor EU legislation,
is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were amending or revoking an enactment contained in subordinate legislation made under a different power.
(5) Any subordinate legislation which—
(a) is, or is to be, made, confirmed or approved by virtue of paragraph 3A, and
(b) modifies as a connected modification any retained direct EU legislation or anything which is retained EU law by virtue of section 4,
is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to the modification to which it is connected.
(6) Any provision which may be made, confirmed or approved by virtue of paragraph 3A may be included in the same instrument as any other provision which may be so made, confirmed or approved.
(7) Where more than one procedure of a kind falling within sub-paragraph (8) would otherwise apply in the same legislature for an instrument falling within sub-paragraph (6), the higher procedure is to apply in the legislature concerned.
(8) The order of procedures is as follows (the highest first)—
(a) a procedure which requires a statement of urgency before the instrument is made and the approval of the instrument after it is made to enable it to remain in force,
(b) a procedure which requires the approval of the instrument in draft before it is made,
(c) a procedure not falling within paragraph (a) which requires the approval of the instrument after it is made to enable it to come into, or remain in, force,
(d) a procedure which provides for the annulment of the instrument after it is made,
(e) a procedure not falling within any of the above paragraphs which provides for the laying of the instrument after it is made,
(f) no procedure.
(9) The references in this paragraph to amending or repealing an enactment contained in primary legislation or amending or revoking an enactment contained in subordinate legislation do not include references to amending or repealing or (as the case may be) amending or revoking an enactment contained in any Northern Ireland legislation which is an Order in Council.
(10) In this paragraph “connected modification” means a modification which is supplementary, incidental, consequential, transitional or transitory, or a saving, in connection with—
(a) another modification under the power of retained direct EU legislation or anything which is retained EU law by virtue of section 4, or
(b) anything else done under the power.
3C_(1) This paragraph applies to any power to make, confirm or approve subordinate legislation—
(a) which was conferred before the day on which this Act is passed, and
(b) is not capable of being exercised as mentioned in paragraph 3A(1)(b) or is only capable of being so exercised in relation to Northern Ireland legislation which is an Order in Council.
(2) Any power to which this paragraph applies (other than a power to which sub-paragraph (4) applies) is to be read—
(a) so far as is consistent with any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4, and
(b) so far as the context permits or requires,
as being capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct minor EU legislation.
(3) Any power to which this paragraph applies (other than a power to which sub-paragraph (4) applies) is to be read, so far as the context permits or requires, as being capable of being exercised to modify (or, as the case may be, result in the modification of)—
(a) any retained direct principal EU legislation, or
(b) anything which is retained EU law by virtue of section 4,
so far as the modification is supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation by virtue of sub-paragraph (2).
(4) Any power to which this paragraph applies so far as it is a power to make, confirm or approve transitional, transitory or saving provision is to be read, so far as the context permits or requires, as being capable of being exercised to modify (or, as the case may be, result in the modification of)—
(a) any retained direct EU legislation, or
(b) anything which is retained EU law by virtue of section 4.
3D_ Any subordinate legislation which is, or is to be, made, confirmed or approved by virtue of paragraph 3C(2), (3) or (4) is to be subject to the same procedure (if any) before Parliament, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly as would apply to that legislation if it were doing anything else under the power.
3E_ Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction or any corresponding restriction in relation to compatibility with retained EU law.
3F_(1) Paragraphs 3A to 3E and this paragraph—
(a) do not prevent the conferral of wider powers,
(b) do not apply so far as section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or section 24(3) of the Northern Ireland Act 1998 applies (or would apply when in force on and after exit day), and
(c) are subject to any other provision made by or under this Act or any other enactment.
(2) For the purposes of paragraphs 3A and 3C—
(a) a power is conferred whether or not it is in force, and
(b) a power in retained direct EU legislation is not conferred before the day on which this Act is passed.
(3) A power which, by virtue of paragraph 3A or 3C or any Act of Parliament passed before, and in the same Session as, this Act, is capable of being exercised to modify any retained EU law is capable of being so exercised before exit day so as to come into force on or after exit day.”
112: Schedule 8, page 56, line 26, leave out paragraph 5 and insert—
“5A(1) This paragraph applies to any power to make, confirm or approve subordinate legislation which is conferred on or after the day on which this Act is passed.
(2) Any power to which this paragraph applies (other than a power to which sub-paragraph (4) applies) may—
(a) so far as is consistent with any retained direct principal EU legislation or anything which is retained EU law by virtue of section 4, and
(b) so far as applicable and unless the contrary intention appears,
be exercised to modify (or, as the case may be, result in the modification of) any retained direct minor EU legislation.
(3) Any power to which this paragraph applies (other than a power to which sub-paragraph (4) applies) may, so far as applicable and unless the contrary intention appears, be exercised to modify (or, as the case may be, result in the modification of)—
(a) any retained direct principal EU legislation, or
(b) anything which is retained EU law by virtue of section 4,
so far as the modification is supplementary, incidental or consequential in connection with any modification of any retained direct minor EU legislation by virtue of sub-paragraph (2).
(4) Any power to which this paragraph applies so far as it is a power to make, confirm or approve transitional, transitory or saving provision may, so far as applicable and unless the contrary intention appears, be exercised to modify (or, as the case may be, result in the modification of)—
(a) any retained direct EU legislation, or
(b) anything which is retained EU law by virtue of section 4.
5B_(1) Sub-paragraph (2) applies to any power to make, confirm or approve subordinate legislation which—
(a) is conferred on or after the day on which this Act is passed, and
(b) is capable of being exercised to amend or revoke (or, as the case may be, result in the amendment or revocation of) any retained direct principal EU legislation.
(2) The power may, so far as applicable and unless the contrary intention appears, be exercised—
(a) to modify otherwise than by way of amendment or revocation (or, as the case may be, result in such modification of) any retained direct principal EU legislation, or
(b) to modify (or, as the case may be, result in the modification of) anything which is retained EU law by virtue of section 4.
5C_(1) Paragraphs 5A and 5B and this paragraph—
(a) do not prevent the conferral of wider powers,
(b) do not apply so far as section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or section 24(3) of the Northern Ireland Act 1998 applies (or would apply when in force on and after exit day), and
(c) are subject to any other provision made by or under this Act or any other enactment.
(2) For the purposes of paragraphs 5A and 5B—
(a) a power is conferred whether or not it is in force,
(b) a power in retained direct EU legislation is conferred on or after the day on which this Act is passed, and
(c) the references to powers conferred include powers conferred by regulations under this Act (but not powers conferred by this Act).
(3) A power which, by virtue of paragraph 5A or 5B or any Act of Parliament passed after, and in the same Session as, this Act, is capable of being exercised to modify any retained EU law is capable of being so exercised before exit day so as to come into force on or after exit day.”
112A: Schedule 8, page 56, line 32, at end insert—
“Explanatory statements for instruments amending or revoking regulations etc. under section 2(2) of the ECA
5D_(1) This paragraph applies where, on or after exit day—
(a) a statutory instrument which amends or revokes any subordinate legislation made under section 2(2) of the European Communities Act 1972, or
(b) a draft of such an instrument,
is to be laid before each House of Parliament or before the House of Commons only.
(2) Before the instrument or draft is laid, the relevant authority must make a statement as to why, in the opinion of the relevant authority, there are good reasons for the amendment or revocation.
(3) Before the instrument or draft is laid, the relevant authority must make a statement otherwise explaining—
(a) the law which is relevant to the amendment or revocation, and
(b) the effect of the amendment or revocation on retained EU law.
(4) If the relevant authority fails to make a statement required by sub-paragraph (2) or (3) before the instrument or draft is laid—
(a) a Minister of the Crown, or
(b) where the relevant authority is not a Minister of the Crown, the relevant authority,
must make a statement explaining why the relevant authority has failed to make the statement as so required.
(5) A statement under sub-paragraph (2), (3) or (4) must be made in writing and be published in such manner as the person making it considers appropriate.
(6) For the purposes of this paragraph, where an instrument or draft is laid before each House of Parliament on different days, the earlier day is to be taken as the day on which it is laid before both Houses.
(7) This paragraph applies in relation to instruments whether the power to make them is conferred before, on or after exit day including where the power is conferred by regulations under this Act (but not where it is conferred by this Act).
(8) This paragraph does not apply in relation to any laying before each House of Parliament, or before the House of Commons only, of an instrument or draft instrument where an equivalent draft instrument (ignoring any differences relating to procedure) has previously been laid before both Houses or before the House of Commons only.
(9) In this paragraph “the relevant authority” means—
(a) in the case of an Order in Council or Order of Council, the Minister of the Crown who has responsibility in relation to the instrument,
(b) in the case of any other statutory instrument which is not made by a Minister of the Crown, the person who makes, or is to make, the instrument, and
(c) in any other case, the Minister of the Crown who makes, or is to make, the instrument.”
112B: Schedule 8, page 56, line 32, at end insert—
“5E(1) This paragraph applies where, on or after exit day—
(a) a Scottish statutory instrument which amends or revokes any subordinate legislation made under section 2(2) of the European Communities Act 1972, or
(b) a draft of such an instrument,
is to be laid before the Scottish Parliament.
(2) Before the instrument or draft is laid, the relevant authority must make a statement as to why, in the opinion of the relevant authority, there are good reasons for the amendment or revocation.
(3) Before the instrument or draft is laid, the relevant authority must make a statement otherwise explaining—
(a) the law which is relevant to the amendment or revocation, and
(b) the effect of the amendment or revocation on retained EU law.
(4) If the relevant authority fails to make a statement required by sub-paragraph (2) or (3) before the instrument or draft is laid, the relevant authority must make a statement explaining why the relevant authority has failed to make the statement as so required.
(5) A statement under sub-paragraph (2), (3) or (4) must be made in writing and be published in such manner as the relevant authority considers appropriate.
(6) This paragraph applies in relation to instruments whether the power to make them is conferred before, on or after exit day including where the power is conferred by regulations under this Act (but not where it is conferred by this Act).
(7) In this paragraph “the relevant authority” means—
(a) in the case of a Scottish statutory instrument which is not made by the Scottish Ministers, other than an Order in Council, the person who makes, or is to make, the instrument, and
(b) in any other case, the Scottish Ministers.”
112BA: Schedule 8, page 59, line 31, after “law”” insert “, “retained direct minor EU legislation”, “retained direct principal EU legislation””
112BB: Schedule 8, page 59, line 33, after “6(7)” insert “, (Status of retained EU law)(6)”