Commentary on Sections of the Act Section 4 – Restatement and continuation of EU derived enactments
55.This section gives the Welsh Ministers the power to restate and continue in effect the domestic legislation applicable in Wales in devolved subjects that is derived from EU law or relates to the EU or EEA for some or all purposes.
56.Section 4(1) specifies that the power in section 4(2) applies to enactments, as defined in section 20(1), which in some way operate to implement EU law obligations or relate otherwise to the EU or the EEA. On leaving the EU there could be doubt over whether enactments which presupposed membership of the EU would continue to work effectively. The same doubts could also apply to enactments which relate or refer to the EU or EEA.
57.The power in section 4(2) addresses this doubt. It does so by enabling the Welsh Ministers, by regulations, to
	repeal or revoke such enactments and to restate them (subsection (2)(a)), and
	disapply enactments and subsequently restate them (subsection (2)(b)).
58.Repeal or revocation of an enactment occurs when the enactment ceases to be part of the law of a jurisdiction. Wales remains part of the unified jurisdiction of England and Wales, despite devolution. This means that laws which apply only in relation to Wales technically form a part of the law recognised by the courts of England and Wales. Enactments that apply only to Wales, either in or under Acts of Parliament or in or under Acts of the National Assembly for Wales, and which include subject matter wholly within devolved competence are the kinds of enactments that can be repealed or revoked under subsection (2)(a).
59.Where an enactment applying to Wales also applies to England or it contains severable subject-matter that is not devolved to the National Assembly for Wales, it cannot be repealed or revoked under the power in subsection (2)(a). Subsection (2)(b) is intended to cover this type of enactment, which, given the limitations of devolved competence, will need to be disapplied in relation to Wales or in relation to devolved subject-matter (the disapplication being given effect by amendments to the enactment).
60.Many of the enactments covered by section 4 will require corrections to ensure that they can continue to operate effectively after the withdrawal of the UK from the EU. The powers in paragraphs (c) and (d) of subsection (2) enable the Welsh Ministers to restate the enactments with the modifications necessary to achieve this aim.
61.Section 4(2)(e) enables the Welsh Ministers to make further provision in connection with restatement. For example, this could include provision in relation to powers contained in EU directives to make EU tertiary legislation (see subsection (5)(f)). In such circumstances the EU directive will have been implemented in domestic legislation, but the power to make EU tertiary legislation will not form part of domestic law. The power to make EU tertiary legislation is needed to ensure the EU directive can be implemented effectively. This could include powers to update technical aspects of an EU directive to reflect practical, scientific or technological developments. Section 4(2)(e) therefore enables the Welsh Ministers to recreate those powers domestically so as to ensure the full legislative scheme can operate effectively after the UK withdraws from the EU.
62.Section 4(3) enables the Welsh Ministers to make regulations so that subordinate legislation made under enactments which are repealed, revoked or disapplied in relation to Wales by virtue of section 4(2) continues to have effect. Alternatively, section 4(2) could be used to restate the subordinate legislation in question. The Welsh Ministers will be able to decide whether to deal with such subordinate legislation under the powers in section 4(2) or (3). Subordinate legislation which continues to have effect in this way may also be modified to ensure it operates effectively.
63.As with section 3, section 4 sets out a non-exhaustive list of the type of modifications envisaged as being necessary to ensure the effective operation of the restated enactment. Specific examples include:
	References to the EU: domestic enactments contain numerous references to “EU law”, “EU obligations”, “member States other than the UK” and “EEA states”. These will require modification to reflect the withdrawal of the UK from the EU. For example, regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017(13) defines “Union legislation”. The term is defined by reference to enactments which apply in relation to Wales which give effect to an “EU obligation”. These will require revision as there will be no provision in enactments which give effect to EU obligations following the withdrawal of the UK from the EU (unless the withdrawal agreement contains such provision – to be addressed by the power in section 10).
	EU institutions: provisions in domestic enactments operate on the basis of EU membership, including the role played by various EU institutions and the provision of funding through EU-operated schemes. Regulation 3 of the School Milk (Wales) Regulations 2017(14) makes provision for the provision of “national aid” to applicants who are also in receipt of “Union aid”. Union aid is aid provided under Article 23 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007. As “Union aid” will no longer be payable, an eligibility criteria based on receipt of such aid will no longer be operable. The amendment to the School Milk (Wales) Regulations 2017 will depend on the corresponding provision made to Regulation (EU) No 1308/2013 in regulations made under section 3.
	Reciprocal arrangements: various arrangements and EU obligations directly or indirectly result in, or require, varying degrees of reciprocity across member States. One example is the principle of the mutual recognition of qualifications. The School Teachers’ Qualifications (Wales) Regulations 2012(15) make provision relating to individuals who are entitled to teach in the UK by virtue of Council Directive 2005/36/EC on the recognition of professional qualifications (although indirectly by reference to other domestic legislation). In restating the School Teachers’ Qualifications (Wales) Regulations 2012, modification could be made to address changes to the principle of mutual recognition of qualifications.
64.Subsection (5) also includes the example of conferring functions or imposing restrictions which were in an EU directive and in force immediately before exit day and which it is appropriate to retain. This reflects the possibility that the Welsh Ministers have implemented an EU directive but have not implemented the provisions in the directive which provide for the European Commission or an EU agency to carry out a function. In such an example, the domestic enactment could operate on the basis of a particular function being exercised by the European Commission or EU agency. Subsection (5)(f) confirms that the power to restate with modifications under subsection (2) or make further provision includes the power to recreate the function and confer it, for example, on the Welsh Ministers or an appropriate public authority.
65.No reference is made in subsection (5) to the power to modify an enactment as it is clear from subsection (1) and (2) and the definition of an enactment in section 20(2) that the power can be used to modify any enactment that is wholly or partly within devolved competence.
66.The restrictions on the exercise of the power in section 4(2) match those that apply in section 3, other than a minor difference in section 4(7)(d). Section 4(7)(d) reflects the limits on the Assembly’s legislative competence in relation to functions of a Minister of the Crown, specifically the restriction in paragraph 1(2) of Part 2 of Schedule 7 to the GoWA 2006 on conferring or imposing functions on a Minister of the Crown. However, as the power in section 4 is about restating the law, subsection (7)(d) confirms that regulations made under subsection (2) can restate a Minister of the Crown function due to the exception in paragraph 8 of Part 3 of Schedule 7 to the GoWA 2006.
67.The same timing restrictions also apply to regulations made under section 4 by virtue of subsection (8).