Commentary on Sections of the Act Section 10 – Implementing the withdrawal agreement
89.Section 10 gives the Welsh Ministers a power to make regulations to implement a withdrawal agreement concluded between the UK and the EU under Article 50(2) of the TEU (or that Article as applied by the Euratom Treaty).
90.The power can only be used to make provision that should be in force on or before exit day. Where any provision is needed to come into force after exit day, the power cannot be used. Any post-exit modifications would need to be the subject of further legislation.
91.The power can only be used to make provision within the devolved competence of the Assembly which is defined in section 17. Regulations made under this section may come into force before and on exit day. Where the regulations under section 10 are to come into force prior to exit, the restriction on legislating incompatibly with EU law in section 108(6)(c) of the GoWA 2006 will be relevant. Where regulations under section 10 are to come into force on exit day (to note the regulations cannot include provision to come into force after exit day – see subsection (1)), the restriction in section 108(6)(c) relating to legislating incompatibly with EU law will not be relevant as the UK will no longer be a member of the EU and therefore not subject to EU law.
92.The power can be used to modify primary legislation, including the Act. ‘Modify’ is defined in section 20(1) and includes amending, repealing or revoking legislation.
93.The power is subject to the same restrictions as apply to the power in section 3. Devolution provides further restriction on the scope of the power, not only in terms of the subject matter that could be contained in the regulations, but also in terms of the restrictions in Part 2 of Schedule 7 to the GoWA 2006 which includes prohibition on modifying specified provisions in the GoWA 2006, the GoWA 1998 and the Public Audit (Wales) Act 2013 and the entirety of the ECA 1972, the Data Protection Act 1998, the Human Rights Act 1998, the Civil Contingencies Act 2004 and the Re-Use of Public Sector Information Regulations 2005(18).
94.Section 18 confirms that the expiry of this power (and others in the Act) on exit day does not affect the continuation in force of the regulations made on or before exit day.