Commentary on provisions of Act Section 3: Regulations in connection with the retention of EU legislation under section 1
Section 3 gives the Secretary of State the power to make necessary operability changes to make sure that the law works properly for claim year 2020. The powers are also mirrored for the Devolved Administrations (DAs). The Secretary of State may do so UK wide but only with the consent of the DAs. There is also a power to make amendments during 2020 if the equivalent EU law is amended and the UK or DAs similarly wish to make this amendment. These powers mirror the powers set out in sections 8 and 11 of the 2018 Act with modifications. There is also a power for DAERA to enable them to continue to move towards a uniform unit value of payment entitlements.
	Subsection (1) provides the Secretary of State with the power to make secondary legislation to fix any deficiency or failure in retained EU law governing the CAP direct payment schemes that arises from EU exit, or to keep pace with any changes made to the CAP direct payments scheme for the claim year 2020 by the EU. A failure of retained EU law governing the CAP direct payments scheme is a type of deficiency: a failure means the law doesn’t operate effectively, whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly.
	Subsection (2) places a duty on the Secretary of State to get consent from the DAs before making UK wide regulations.
	Subsection (3) gives power to the devolved authorities in Scotland, Wales and Northern Ireland to make regulations to fix any deficiencies in the law that arise form EU exit, or to keep pace with any changes made to the CAP direct payments scheme for the claim year 2020 by the EU.
	Subsection (4) allows DAERA in Northern Ireland to modify the retained EU law incorporated by Section 1(1) where it concerns the value of payment entitlements in Northern Ireland, so that those entitlements may continue to move towards a uniform unit value.
	Subsection (5) explains the sorts of deficiencies arising after exit day that may be corrected using the powers in subsections (1)(a)(ii) and (3)(a)(ii). It mirrors some of the equivalent provisions in the 2018 Act.
	Subsection (6) specifies that sections 8(5) to (7), apart from subsection (7)(e), of the 2018 Act apply in relation to regulations made under the powers in subsections (1) and (3) and explains how those sections of the 2018 Act are to be read.
Section 8(5) of the 2018 Act provides that secondary legislation made under the power in this section can do anything an Act of Parliament might to deal with deficiencies. This could include altering Acts of Parliament where appropriate and sub-delegating the power to a public authority where they are best placed to deal with the deficiencies. The power is subject to the restrictions set out in Section 8(7) of the 2018 Act.
Section 8(6) of the 2018 Act provides, non-exhaustively, for what the secondary legislation made under this power can do. For example, it can transfer the functions of EU authorities to UK public authorities. These functions might include the ability to set rules or create standards, which are currently made by the EU as non-legislative acts (delegated and implementing acts). The power can be used to repeal, amend or replace parts of the retained law. There will be other uses of the power necessary to correct deficiencies. The power could be used to amend law which is not retained EU law where that is an appropriate way of dealing with a deficiency in retained EU law.
Section 8(7) of the 2018 Act stipulates that regulations cannot be used to impose or increase taxation or fees, make retrospective provision, create a relevant criminal offence, establish a public authority, amend the Human Rights Act 1998 or any subordinate legislation made under it, amend the devolution Acts (except in certain specific and limited ways), or for the purposes of implementing the WA.
	Subsection (7) clarifies that the provisions made by regulations in this section may apply in relation to matters arising in relation to the CAP direct payment schemes for the whole of the 2020 claim year. This ensures that provisions can cover matters arising in January 2020 whilst still under EU law.
	Subsection (8) is an important safeguard and makes clear that the powers are temporary and will expire after 31 December 2020. This does not affect the continuation of regulations made before that date so, for example, any outstanding payments to farmers in relation to the 2020 scheme year can continue to be paid after 31 December 2020.
	Subsection (9) specifies that the regulation making powers in subsections (1) or (3) include the ability to make different provision for different purposes, for example to make amendments to one of the direct payment schemes which only affects certain farmers. It also specifies that the regulation making powers in subsections (1) or (3) include powers to make consequential amendments to the regulations, including the power to re-state any retained EU law governing the CAP direct payment scheme to make it clearer.
	Subsection (10) defines terminology used under this section.