Part 2: Specific Consequential Provision Powers in connection with Ireland/Northern Protocol in the Withdrawal Agreement
New paragraph 8F sets out the parliamentary scrutiny procedures that will apply to regulations made under new section 8C and new Part 1C of Schedule 2:
8F(1) provides that the affirmative procedure must be used if an instrument made under section 8C(1) does one or more of the things listed at sub-paragraph 8F(2):
amends, repeals or revokes primary legislation or retained direct principal EU legislation;
establishes a public authority;
relates to a fee in respect of a function exercisable by a public authority in the UK;
creates, or widens the scope of, a criminal offence;
creates or amends a power to legislate; or
facilitates the access to the market within Great Britain of qualifying Northern Ireland goods.
8F(3) sets out that any other instruments made under this power are subject to the negative procedure (i.e. subject to resolution of either House of the parliament); and
8F(4) provides that the affirmative procedure must be used where regulations define ‘qualifying Northern Ireland goods’ under new section 8C(6).
	New sub-paragraphs 8F(5) to (10) set out the scrutiny procedures that will apply to regulations made by Scottish Ministers, Welsh Ministers or Northern Ireland departments under the power at new Part 1C of Schedule 2.
	New paragraph 8G sets out the scrutiny procedures by the UK Parliament and the devolved legislatures for instruments made under new Part 1C of Schedule 2 by a Minister of the Crown acting jointly with a devolved authority.
	Paragraph 52 amends Part 2 of Schedule 7 (scrutiny of other powers under Act) to the European Union (Withdrawal) Act 2018.
	Paragraph 52(1) introduces the amendment;
	Paragraph 52(2) inserts a new paragraph 9A (power in relation to interpretation of retained EU law) which provides that regulations made under section 6(5A) are subject to the affirmative procedure powers under the Act).
	Paragraph 52(3) deletes paragraph 10 of Part 2 of Schedule 7. This is consequential on the repeal of section 9 (the power to implement the withdrawal agreement).
	Paragraph 52(4) deletes "certain implementation or" in paragraph 17 of Part 2 of Schedule 7.This is consequential on the repeal of section 9 (the power to implement the withdrawal agreement).
	Paragraph 52(5) amends paragraph 17(1) to remove references to paragraph 10. Paragraph 17(11) is amended to remove the definitions of Commons and Lords sitting days which are no longer necessary after the repeal of section 9.
	Paragraph 52(6) removes paragraph 18 (Committee of the National Assembly for Wales to sift certain implementation regulations of Welsh Ministers). This is consequential on the repeal of section 9 (the power to implement the withdrawal agreement).
	Paragraph 52(7) makes further consequential amendments as a result of the repeal of section 9.
	Paragraph 53 amends Part 3 of Schedule 7 (general provision about powers under Act) in the following way:
paragraph 53(1) introduces the amendments to Part 3 of Schedule 7;
paragraph 53(2) amends paragraph 21 of Schedule 7 of the EU (Withdrawal) Act 2018 so that powers to make regulations in the Act can be used to modify or restate in a clearer or more accessible way anything which continues on or after exit day, to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at new section 1B(2);
paragraph 53(3) amends paragraph 23 of Schedule 7 of the EU (Withdrawal) Act 2018:
paragraph 53(3)(a) amends sub-paragraph (1) so that the law preserved by new sections 1A and 1B can also be modified by the power to make consequential provision;
paragraph 53(3)(b) amends sub-paragraph (2) to clarify that the consequential power in the Act can also be used to modify anything which continues, on or after exit day, to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at 1B(2), if the changes are consequential on repeal of any provision in the ECA;
paragraph 53(3)(c) amends sub-paragraph (3) so that the transitional, transitory and savings power in the Act can do things in connection with the repeal of provisions in the ECA or withdrawal from the EU in a way which is additional, or produces different effects, to the changes made by the new sections 1A and 1B of that Act;
paragraph 53(3)(d) amends sub-paragraph (4)(b) to clarify that the consequential power can do things in connection with repeals or withdrawal from the EU which are additional, or produces different effects, to the changes made by new sections 1A and 1B of that Act; and
paragraph 53(3)(e) amends sub-paragraph (5) to clarify that the transitional, transitory and savings and consequential powers can be used to treat any provisions provided for in sub-paragraphs (3) and (4) as anything which continues to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at 1B(2);
Paragraph 53(4) inserts a new paragraph 23A ‘Anticipatory exercise of powers in relation to section 1B(2) saved law’ into Schedule 7 of the EU (Withdrawal) Act 2018. New paragraph 23A clarifies the anticipatory use of delegated powers in this Act in relation to any enactment which continues, on or after exit day, to be domestic law by virtue of the saving of EU-derived domestic legislation for the implementation period at 1B(2). This means that these powers can be exercised before exit day to amend domestic law saved by virtue of 1B(2), so that the regulations come into force on or after exit day;
Paragraph 53(5) amends references to ‘exit day’ in paragraph 24 of Schedule 7 of the EU (Withdrawal) Act 2018 to ‘IP completion day’. This means that the delegated powers in the EU (Withdrawal) Act 2018 can be exercised before IP completion day to modify retained EU law, where the regulations come into force on or after IP completion day; and
Paragraph 53(6) inserts a new paragraph 24A ’Anticipatory exercise of powers in relation to the withdrawal agreement’ into Schedule 7 of the EU (Withdrawal) Act 2018. New paragraph 24A allows for the anticipatory use of delegated powers in the Act which relate to the Withdrawal Agreement. This means regulations can be made before the Withdrawal Agreement is ratified, where the regulations come into force on or after the day on which the Withdrawal Agreement is ratified.
Paragraphs 53(7) to (13) make amendments consequential on the repeal of section 9 of the EU (Withdrawal) Act 2018 in relation to explanatory statements for certain powers and replace references to ‘exit day’ with ‘IP completion day’ in paragraphs 28(6)(c) and 29(6)(c) of Part 3 of Schedule 7.
	Paragraph 54 amends Part 1 of Schedule 8 (general consequential provision):
Paragraph 54(1) introduces the amendments to Part 1 of Schedule 8;
Paragraphs 54(2) and 54(3) substitute references to ‘exit day’ in paragraphs 1(1) and 2(1) of Schedule 8 of the EU (Withdrawal) Act 2018 to ‘IP completion day’. This ensures that existing ambulatory references (that is, cross-references to EU instruments as they may be amended from time to time in the future) will continue to ambulate until IP completion day. After IP completion day, existing ambulatory references to EU Regulations, decisions or tertiary legislation which form part of retained EU law will generally become references to the retained version of those instruments. Other existing ambulatory references will not generally continue to update after IP completion day. Paragraphs 1(1) and 2(1) of Schedule 8 of the EU (Withdrawal) Act 2018 do not apply where any such reference forms part of or is a reference to relevant separation agreement law.
Paragraph 54(4) replaces paragraph 7 of Schedule 8 of the EU (Withdrawal) Act 2018. The new paragraph 7 lifts any implied restriction to act compatibly with EU law on exit day and then IP completion day, so far that EU law restriction does not continue to apply under the Withdrawal Agreement. Any implied EU law restriction which continues by virtue of Part 4 of the Withdrawal Agreement will therefore not be lifted until IP completion day. Further, from IP completion day there is no corresponding restriction in relation to retained EU law, so far as it is not relevant separation agreement law. Any restriction that arises by virtue of other Parts of the Withdrawal Agreement will remain after IP completion day;
Paragraph 54(5) amends paragraph 8 of Schedule 8 of the EU (Withdrawal) Act 2018 so that existing powers and powers in Acts passed before the end of the implementation period can be exercised to modify retained EU law before IP completion day if they come into force on or after IP completion day;
Paragraph 54(6) amends paragraph 9 of Schedule 8 of the EU (Withdrawal) Act 2018 so that it deals with duties to conduct post-implementation reviews of regulations made after IP completion day. In conducting those reviews, Ministers will not need to have regard to how EU Member States have implemented the UK’s former EU obligations;
Paragraph 54(7) amends paragraph 12 of Schedule 8 of the EU (Withdrawal) Act 2018 to allow the anticipatory use of future powers so that they can be exercised before IP completion day to amend retained EU law if they come into force on or after IP completion day;
Paragraph 54(8), (9), (10) and (11) amend paragraphs 13, 14, 15 and 16 of Schedule 8 of the EU (Withdrawal) Act 2018 so that the additional requirements applying to certain statutory instruments (including Scottish statutory instruments to an extent) that amend or revoke section 2(2) ECA regulations apply from IP completion day. This is in light of the continuing EU obligations on the UK during the implementation period under Part 4 of the Withdrawal Agreement; and
These requirements will not apply where the amendment or revocation is only for the purposes of, or otherwise only within the scope of, the Withdrawal Agreement (other than Part 4 of that agreement), the EEA EFTA Separation Agreement, or the Swiss Citizens’ Rights Agreement, as the UK will still be subject to international obligations when making such amendments or revocations.
	Paragraph 55 amends Part 3 of Schedule 8 on general transitional, transitory or saving provision):
Paragraph 55(2) inserts new paragraph 36A into Schedule 8 of the EU (Withdrawal) Act 2018. New sub-paragraphs 36(A)(1) and (2) make clear that anything in force or being done in connection with the ECA as saved by new section 1A(2), EU-derived domestic legislation saved by new section 1B(2), for the purpose of implementing EU obligations or otherwise related to EU law immediately before exit day, continues to be in force or being done on and after exit day;
Sub-paragraph 36A(3) makes clear that the above provision in this new paragraph is subject to certain sections of the EU (Withdrawal) Act 2018 and the EU (Withdrawal Agreement) Act, and other relevant enactments. 36A(4) clarifies that references to anything being done, includes anything omitted to be done; and
Paragraph 55(3) amends paragraph 37 of Schedule 8 of the EU (Withdrawal) Act 2018 so that it functions as intended, by providing for the continuation of existing acts in relation to retained EU law, but on IP completion day when this law will be retained. It also takes account of other related amendments to this Act.
	Paragraph 56 amends Part 4 of Schedule 8 on specific transitional, transitory and saving provision:
Paragraph 56(2) amends the subheading before paragraph 38 of Part 4 of Schedule 4 to the EU (Withdrawal) Act 2018 so that it reads: ‘Retention of saved EU law at the end of implementation period’;
Paragraph 56(3) inserts a new paragraph 37A to make clear that the automatic repeal of the key implementation period provisions in the EU (Withdrawal) Act 2018 on IP completion day will not prevent the glosses which applied to domestic legislation during the implementation period, under section 1B(3), (4) or (5), from applying to that legislation as saved by section 2 of the EU (Withdrawal) Act 2018;
Paragraph 56(4) amends references to ‘exit day’ to ‘IP completion day’ in paragraph 38 of Schedule 8 to the EU (Withdrawal) Act 2018. This ensures that rights etc which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before IP completion day but are decided on or after IP completion day are preserved by section 4 and are not excluded by subsection (2) of that section;
Paragraph 56(5) amends references to ‘exit day’ to ‘IP completion day’ in paragraph 39 of Schedule 8 to the EU (Withdrawal) Act 2018. This makes further provision about the exceptions to the saving and incorporation of EU law set out in section 5 and Schedule 1. This ensures that the transitional and savings provisions for the exceptions to the preservation of EU law take effect from IP completion day;
Paragraph 56(6) amends paragraph 40 of Schedule 8 in the EU (Withdrawal) Act 2018 so that new powers which are added to the Act and are sunsetted are added into the name-checked sections to clarify that although these powers expire, the regulations made under them do not expire;
Paragraph 56(7) amends references to ‘exit day’ to ‘IP completion day’ in paragraph 41 of Schedule 8 in the EU (Withdrawal) Act 2018 so that the validity of devolved primary legislation receiving Royal Assent before IP completion day or subordinate legislation subject to confirmation or approval that has been made or approved before IP completion day and any other subordinate legislation made before IP completion day is not affected;
These amendments also disapply the current EU law limit on devolved competence so that primary and secondary legislation can be made validly before IP completion day in relation to an area that is not specific in any regulations made under the powers inserted by section 12(2), 12(4) or 12(6) or Schedule 3, Part 1 as subject to a limit on competence. This amendment also disapplies - for the exercise of the powers in Schedules 2 and 4 - the provisions in the Devolution Acts that would otherwise prevent the devolved administrations from making secondary legislation that would be incompatible with EU law; and
Paragraph 56(8) again amends references to ‘exit day’ to ‘IP completion day’ in paragraph 42 of Schedule 8 in the EU (Withdrawal) Act 2018. This amendment is self-explanatory.
	Paragraph 57 makes consequential amendments to the European Parliamentary Elections etc (Repeal, Revocation, Amendment and Saving Provisions) (United Kingdom and Gibraltar) (EU Exit) Regulations 2018 as a result of the conversion of EU law into ‘retained EU law’ taking place at the end of the implementation period.