Part 2: Specific consequential provision
Finance Act 1973
- Paragraph 17 amends section 56 of the Finance Act 1973 (charges for services by Government departments) to remove the reference to "EU obligations", which is no longer relevant.
- Paragraphs 18 to 22 make amendments to the Interpretation Act 1978, which is the legislation which sets out some general rules of interpretation of legislation, including in relation to the construction of certain words and phrases, the effect of repeals and the interpretation of statutory powers and duties.
- Paragraph 19 provides that the definition of subordinate legislation contained in the Interpretation Act 1978 includes instruments of the same nature made on or after exit day under any retained direct EU legislation. This means that the provisions of the Interpretation Act will apply to instruments which are made under retained direct EU legislation, (for example under powers in a retained EU regulation which have been turned into domestic powers), as they apply to other subordinate legislation. It also means that where other legislation relies on the Interpretation Act definition of subordinate legislation, it will include subordinate legislation made under retained direct EU legislation.
- Paragraph 20 amends the Interpretation Act 1978 to provide that certain provisions within it will apply (so far as applicable and unless contrary intention is made) to any amendments which are made to converted direct EU legislation. So, for example, where amendments are made to EU regulations which include terms that are defined in Schedule 1 to the Interpretation Act, the Interpretation Act definition will apply to them, unless a contrary intention is shown (though if the same terms were used in an unamended part of the instrument, the Interpretation Act definition would not apply to those instances).
- Paragraph 21 amends the provisions of the Interpretation Act 1978 as it applies to Northern Ireland so that the old ECA definitions saved by paragraph 22 (below) continue to apply to Northern Ireland legislation.
- Paragraph 22 adds a number of words and expressions to Schedule 1 to the Interpretation Act 1978. The ECA contains a number of important definitions in section 1 and Part 2 of Schedule 1. These definitions apply to all legislation made by Parliament and by the Northern Ireland Assembly and the National Assembly for Wales (and not just to the ECA), by virtue of section 5 of, and Schedule 1 to, the Interpretation Act. The latter provides that "the EU" or "the EU Treaties" and other expressions defined by section 1 of, or Schedule 1 to, the ECA have the meanings prescribed by that Act. Paragraph 11 moves most of these old ECA definitions across to the Interpretation Act, as otherwise they would no longer exist as a result of repeal of the ECA. However, the definition of "EU customs duty", "EU obligation" and "enforceable EU right" have not been retained in the Interpretation Act as such references will be broken on exit and will need to be amended or repealed using powers under the Act. There are also some changes to some definitions, and some new definitions, to reflect the new context post exit and the relationship between domestic and retained EU law. For example, paragraph 11 inserts into Schedule 1 to the Interpretation Act new definitions of "exit day", "retained EU law", and "retained direct EU legislation" and "retained EU obligation", to ensure those concepts recognised under the Act apply to all legislation.
- Paragraphs 23 to 28 amend the European Economic Area Act 1993. As explained in the legal background of these notes, on exit day the UK ceases to participate in the EEA Agreement. Paragraph 13 therefore repeals section 1 of the EEA Act 1993, which was the basic provision implementing the EEA Agreement in UK law and is therefore redundant. Paragraphs 14 and 15 amend sections 2 and 3 of the EEA Act 1993. These sections ensure that domestic legislation which was in force prior to the entry into force of the EEA Agreement in 1993 is read consistently with the provisions of that Agreement. Paragraphs 14 and 15 ensure that the modifications made by sections 2 and 3 will continue to operate appropriately in respect of legislation that pre-dates the EEA Agreement. Paragraphs 16 and 17 make consequential amendments to the EEA Act 1993.
- Paragraph 29 amends section 288ZA Criminal Procedure (Scotland) Act 1995 so that it refers to the limits on modifying retained EU law that may be applied by the new powers inserted into the Scotland Act 1998 by section 12(2) and paragraph 1 of Schedule 3, rather than compatibility with EU law.
- Paragraph 30 provides that retained direct principal EU legislation (see the definition in section 7(6)) is to be treated as ‘primary legislation’ for the purposes of the Human Rights Act 1998 (HRA). This means that if such legislation is found to breach the Act, a court may issue a declaration of incompatibility but may not strike down the legislation.
- Paragraph 30 also provides that retained direct minor EU legislation (see the definition in section 7(6)) is to be treated as ‘subordinate legislation’ for the purposes of the HRA, except where it amends primary legislation (where it will be treated as ‘primary legislation’). This means that if such legislation is found to breach the HRA a court may strike down the legislation.
- Paragraph 31 amends the definition of ‘Scottish instruments’ in Part 1 of the Interpretation and Legislative Reform Act (Scotland) 2010 (ILRA). This means that where an instrument is made by the Scottish Ministers under a combination of powers in an Act of the Scottish Parliament and powers in retained direct EU legislation the provisions in Part 1 of ILRA (which deal with various rules of interpretation) will apply to that instrument.
- Paragraph 32 amends the definition of ‘enactment’ for Part 2 of that Act to include retained direct EU legislation and defines subordinate legislation for the purposes of Part 2 of that Act as including secondary legislation made under retained direct EU legislation. The effect of these changes is to make the normal rules on Scottish statutory instrument procedure contained in ILRA (which deal with scrutiny in the Scottish Parliament) apply to Scottish statutory instruments made by the Scottish Ministers under new powers in retained direct EU legislation.
- Paragraph 33 adds a number of words and expressions to Schedule 1 of that Act to bring over definitions from the ECA which would otherwise no longer exist as a result of repeal of the ECA.
- Paragraph 34 amends section 30(3) of the Small Business, Enterprise and Employment Act 2015 to omit the requirement for a review to have regard to how an EU obligation is implemented in other member states. In legislation that implements the UK’s international obligations the requirement to review how other countries have implemented an obligation remains.
Interpretation Act 1978
European Economic Area Act 1993
Criminal Procedure (Scotland) Act 1995
Human Rights Act 1998
Interpretation and Legislative Reform (Scotland) Act 2010
Small Business, Enterprise and Employment Act 2015
