Law Derived from the European Union (Wales) Act 2018

Document Number:2018 anaw 3
 
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An Act of the National Assembly for Wales to make provision for the operation in relation to Wales of law derived from the European Union relating to subjects devolved to the Assembly, in connection with the withdrawal of the United Kingdom from the European Union.

Having been passed by the National Assembly for Wales and having received the assent of Her Majesty, it is enacted as follows:

Introduction

1 Overview

This Act—

(a) provides for the making, restatement and specification of EU derived Welsh law by the Welsh Ministers in regulations and makes connected provision (sections 2 to 8);

(b) provides other powers for the Welsh Ministers to make provision in connection with the withdrawal of the United Kingdom from the European Union (sections 9 to 13);

(c) makes provision about the Welsh Ministers giving consent to subordinate legislation within the scope of EU law made by Ministers of the Crown and others under new functions (sections 14 and 15).

EU derived Welsh law

2 EU derived Welsh law

In this Act, “EU derived Welsh law” means—

(a) the provisions made in regulations under section 3 (retained direct EU law) ,

(b) the provisions made in regulations under section 4 or continuing in effect under or by virtue of regulations under that section (enactments derived from EU law) ,

(c) the provisions made in statutory instruments specified under section 5 (provision made under EU related powers and continuing in effect under section 5) , so far as they have effect under that section,

as that body of law is added to or otherwise modified by or under this Act or by other enactments from time to time.

3 Power to retain direct EU law

(1) The Welsh Ministers may by regulations make provision within devolved competence corresponding to direct EU law for the purpose of continuing its operation, so far as the Welsh Ministers consider appropriate, after the United Kingdom withdraws from the European Union.

(2) In making regulations under this section, the Welsh Ministers must seek to continue the rights, powers, liabilities, obligations, restrictions, remedies and procedures that are recognised and available in the law of England and Wales by virtue of section 2(1) of the European Communities Act 1972 at the time the regulations are made.

(3) In this section, “direct EU law” means—

(a) provision in the EU Treaties that has direct effect in the law of England and Wales by virtue of section 2(1) of the European Communities Act 1972 so far as its effect is not reproduced in an enactment that applies in relation to Wales on the day this section comes into force (whether or not the enactment extends or applies to other territories);

(b) provision in any EU regulation, EU decision or EU tertiary legislation so far as its effect is not reproduced in an enactment that applies in relation to Wales on the day this section comes into force (whether or not the enactment extends or applies to other territories);

(c) any Annex to the EEA agreement, so far as—

(i) it refers to, or contains adaptations of, anything falling within paragraph (b) , and

(ii) its effect is not reproduced in an enactment that applies in relation to Wales on the day this section comes into force (whether or not the enactment extends or applies to other territories);

(d) Protocol 1 to the EEA agreement (which contains horizontal adaptations that apply in relation to EU instruments referred to in the Annexes to that agreement).

(4) In making provision corresponding to direct EU law, the Welsh Minsters have the power (among other things)—

(a) to not include anything in direct EU law that will have no practical application in relation to Wales or any part of Wales or will be otherwise redundant or substantially redundant;

(b) to not include functions in direct EU law of, or in relation to, EU entities that will no longer have functions in that respect under EU law in relation to the United Kingdom or any part of the United Kingdom;

(c) to not include provision for, or in connection with, reciprocal arrangements between—

(i) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State,

that will no longer exist or will no longer be appropriate;

(d) to not include provision for, or in connection with, other arrangements that—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s membership of the EU,

and that will no longer exist or will no longer be appropriate;

(e) to not include provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) that will no longer exist, or will no longer be appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties;

(f) to remove EU references in direct EU law that will no longer be appropriate;

(g) to provide for functions in direct EU law of EU entities or public authorities in member States (including making an instrument of a legislative character or providing funding) to be—

(i) exercisable by a public authority (whether or not newly established or established for the purpose) , or

(ii) absent or different in provision made by the regulations;

(h) to provide for the establishment of public authorities to carry out functions provided for by regulations under this section;

(i) to modify an enactment.

(5) But regulations under this section may not—

(a) impose or increase taxation;

(b) make retrospective provision;

(c) create a relevant criminal offence;

(d) confer or impose a function on a Minister of the Crown;

(e) remove or modify a pre-commencement function of a Minister of the Crown unless doing so is incidental to, or consequential on, another provision contained in the regulations.

(6) Regulations under this section—

(a) must be made before exit day, and

(b) must not come into force before exit day.

4 Restatement and continuation of EU derived enactments

(1) The power in subsection (2) applies to an enactment if—

(a) it was passed or made, or operates, entirely or to some extent for a purpose mentioned in section 2(2)(a) or (b) of the European Communities Act 1972 (whether or not made under section 2(2) of, or paragraph 1 A of Schedule 2 to, that Act) , or

(b) it relates otherwise to the EU or the EEA for all or some purposes.

(2) The Welsh Ministers may by regulations—

(a) repeal or revoke an enactment that is wholly within devolved competence;

(b) disapply an enactment that is wholly or partly within devolved competence, so far as it is within devolved competence;

(c) restate an enactment repealed or revoked under paragraph (a) with or without modifications within devolved competence;

(d) restate an enactment disapplied under paragraph (b) , so far as it is disapplied, with or without modifications within devolved competence;

(e) make further provision within devolved competence in connection with restatement of an enactment under paragraph (c) or (d).

(3) The Welsh Ministers may by regulations—

(a) provide for provision in subordinate legislation made under, or by virtue of, a provision repealed or revoked by regulations under subsection (2)(a) to continue in effect as if made under or by virtue of provision in regulations under subsection (2)(c) (including provision in subordinate legislation made under, or by virtue of, functions that are not restated in the regulations under subsection (2)(c));

(b) provide for provision in subordinate legislation made under, or by virtue of, a provision so far as it is disapplied by regulations under subsection (2)(b) to continue in effect as if made under or by virtue of provision in regulations under subsection (2)(d) (including provision in subordinate legislation made under, or by virtue of, functions that are not restated in the regulations under subsection (2)⁠(d));

(c) modify provision in subordinate legislation that continues in effect under this subsection and make further provision in connection with its continued effect, if the modification or further provision is within devolved competence.

(4) Regulations under this section may not make modifications of an enactment or further provision in connection with its restatement or continued effect unless the Welsh Ministers consider the modification or further provision necessary to ensure the effective operation of the enactment after the withdrawal of the United Kingdom from the European Union.

(5) Regulations under this section may include (but are not limited to) provision—

(a) removing anything that has no practical application in relation to Wales or any part of it or is otherwise redundant or substantially redundant;

(b) removing functions of, or in relation to, EU entities that no longer have functions in that respect under EU law in relation to the United Kingdom or any part of the United Kingdom;

(c) removing provision for, or in connection with, reciprocal arrangements between—

(i) the United Kingdom or any part of it or a public authority exercising functions in relation to Wales, and

(ii) the EU, an EU entity, a member State or a public authority in a member State,

that no longer exist or are no longer appropriate;

(d) removing provision for, or in connection with, other arrangements that—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s membership of the EU,

and that no longer exist or are no longer appropriate;

(e) removing provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) that no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties;

(f) conferring functions or imposing restrictions that—

(i) were in an EU directive and in force immediately before exit day (including any power to...

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