Incorporation of Direct Payments Regulation etc

1 Incorporation of EU legislation governing the CAP direct payment schemes

(1) On exit day the EU legislation governing the 2020 CAP direct payment schemes becomes part of domestic law.

(2) In subsection (1), “ the EU legislation governing the 2020 CAP direct payment schemes ” means the EU legislation listed in subsection (3)—

(a) as it has effect in EU law immediately before exit day for the claim year 2020, and

(b) ignoring for this purpose the disapplication of any of its provisions in the United Kingdom by the EU withdrawal agreement.

(3) The EU legislation mentioned in subsection (2) is—

(a) the Direct Payments Regulation, apart from article 13;

(b) Commission Delegated Regulation (EU) No 639/2014Direct Payments Regulation;

(c) Commission Implementing Regulation (EU) No 641/2014Direct Payments Regulation;

(d) in so far as relating to the CAP direct payment schemes—

(i) the Horizontal Regulation;

(ii) Commission Delegated Regulation (EU) No 907/2014Horizontal Regulation with regard to paying agencies and other bodies, financial management, clearance of accounts, securities and use of euro;

(iii) Commission Implementing Regulation (EU) No 908/2014Horizontal Regulation with regard to paying agencies and other bodies, financial management, clearance of accounts, rules on checks, securities and transparency;

(iv) Commission Implementing Regulation (EU) No 809/2014Horizontal Regulation with regard to the integrated administration and control system, rural development measures and cross compliance;

(v) Commission Delegated Regulation (EU) No 640/2014Horizontal Regulation with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance.

(4) This section brings that EU legislation into domestic law only in the form of the English language version of that legislation, but this does not affect the use of other language versions for the purposes of interpretation.

(5) This section does not affect any rights, powers, liabilities, obligations, restrictions or other matters arising in relation to the CAP direct payment schemes for the claim year 2019 or earlier claim years.

(6) But for the purposes of any rights, powers, liabilities, obligations, restrictions or other matters arising in relation to the CAP direct payment schemes for the claim year 2020, that EU legislation is to be treated as if it had formed part of domestic law from the beginning of 2020.

(7) In this Act—

• “ CAP direct payment schemes ” means the support schemes under the Direct Payments Regulation;

• “ claim year ” means a period of 12 months beginning with 1 January (and “claim year”, followed by a year, means the period of 12 months beginning with 1 January in that year);

• the “ Direct Payments Regulation ” means Regulation (EU) No 1307/2013

• the “ Horizontal Regulation ” means Regulation (EU) No 1306/2013

2 Interpretation and status

(1) Section 6 of the European Union (Withdrawal) Act 2018 (interpretation) applies for the purposes of this Act as it applies for the purposes of that Act and, in particular, it applies when a court or tribunal is deciding a question as to the validity, meaning or effect of assimilated law governing the CAP direct payment schemes as it applies when a court or tribunal is deciding a question as to the validity, meaning or effect of assimilated law within the meaning given by that section .

(2) In its application as mentioned in subsection (1), section 6 of that Act has effect with the modifications in subsections (5) and (6).

(3) The following provisions of the European Union (Withdrawal) Act 2018 apply in relation to the modification by domestic law of assimilated direct CAP legislation as they apply in relation to the modification by domestic law of assimilated direct legislation within the meaning given by section 20(1) of that Act —

(a) section 7(2) and (3) (modification of retained direct EU legislation), and

(b) paragraphs 3 to 8 and 11A to 12 of Schedule 8 (existing and future powers to make subordinate legislation).

(4) In their application as mentioned in subsection (3), the provisions mentioned in paragraphs (a) and (b) have effect with the modifications in subsection (5).

(5) To the extent that they are applied for the purposes of subsections (1) and (3), the provisions of the European Union (Withdrawal) Act 2018 in question have effect as if any reference in them to an expression listed in the first column of the following Table were a reference to the corresponding expression in the second column.

(6) In the definitions in section 6(7) of the European Union (Withdrawal) Act 2018 of “ assimilated domestic case law” and “ assimilated EU case law” ... (as applied for the purposes of subsection (1) above)—

(a) references to anything to which section 2 or 3 of that Act applies are to be read as references to anything to which the EU legislation listed in section 1(3) of this Act applies, and

(b) references to the principles and decisions excluded by section 5 of, or Schedule 1 to, that Act are to be read as references to the principles and decisions that would be excluded if that Act were to operate to save and incorporate EU law with exceptions on exit day (instead of IP completion day).

(7) When a court or tribunal is deciding any question as to the validity, meaning or effect of subordinate legislation which is both—

(a) assimilated law governing the CAP direct payment schemes, and

(b) assimilated law within the meaning given by section 6 of the European Union (Withdrawal) Act 2018,

section 6 of that Act applies with the modifications made by this section so far as the question relates to the validity, meaning or effect of the subordinate legislation as assimilated law governing the CAP direct payment schemes.

(8) For the purposes of the Human Rights Act 1998—

(a) the Direct Payments Regulation and the Horizontal Regulation so far as they form part of domestic law by virtue of section 1(1) are to be treated as primary legislation, and

(b) other assimilated direct CAP legislation is to be treated as primary legislation so far as it amends any primary legislation but otherwise is to be treated as subordinate legislation.

(9) In subsection (8), “ amend ”, “ primary legislation ” and “ subordinate legislation ” have the same meaning as in the Human Rights Act 1998.

(10) In this Act—

• “ assimilated law governing the CAP direct payment schemes ” means—

  (a)

  the EU legislation listed in section 1(3) that forms part of domestic law by virtue of section 1(1), and

  (b)

  any subordinate legislation relating to that legislation,

  as that body of law is added to or otherwise modified by domestic law from time to time;

• “ assimilated direct CAP legislation ” means the EU legislation listed in section 1(3) that forms part of domestic law by virtue of section 1(1) (as modified by domestic law from time to time, and including any instruments made under it on or after exit day).

(11) The following provisions come into force (to the extent that they are not already in force) for the purposes of their application under this section at the same time as this section comes into force—

(a) the provisions of the European Union (Withdrawal) Act 2018 applied by this section,

(b) any provision of that Act so far as is necessary for the operation of the applied provisions, and

(c) any provision of the European Union (Withdrawal Agreement) Act 2020 which amends the applied provisions.

3 Regulations in connection with the retention of EU legislation under section 1

(1) The Secretary of State may by regulations—

(a) make such provision as the Secretary of State considers appropriate to prevent, remedy or mitigate—

(i) any failure of retained EU law governing the CAP direct payment schemes to operate effectively, or

(ii) any other deficiency in that body of law,

arising from the withdrawal of the United Kingdom from the EU;

(b) modify retained EU law governing the CAP direct payment schemes so as to make provision corresponding to any modification of the EU legislation listed in section 1(3) having effect in EU law on or after exit day for the claim year 2020.

(2) Before making regulations under subsection (1), the Secretary of State must obtain the consent of—

(a) the Scottish Ministers, if the regulations relate to retained EU law governing the CAP direct payment schemes as it applies in or as regards Scotland;

(b) the Welsh Ministers, if the regulations relate to that body of law as it applies in or in relation to Wales;

(c) DAERA, if the regulations relate to that body of law as it applies in or as regards Northern Ireland.

(3) A devolved authority may by regulations—

(a) make such provision as the authority considers appropriate to prevent, remedy or mitigate—

(i) any failure of retained EU law governing the CAP direct payment schemes to operate effectively, or

(ii) any other deficiency in that body of law,

arising from the withdrawal of the United Kingdom from the EU;

(b) modify retained EU law governing the CAP direct payment schemes so as to make provision corresponding to any modification of the EU legislation listed in section 1(3) having effect in EU law on or after exit day for the claim year 2020.

(4) DAERA may by regulations modify assimilated law governing the CAP direct payment schemes, so far as it applies in or as regards Northern Ireland, for the purpose of ensuring that all payment entitlements, or all payment entitlements within a region, have, or over a period of time reach or move towards, a uniform unit value.

(5) For the purposes of subsections (1)(a)(ii) and (3)(a)(ii), deficiencies in retained EU law governing the CAP direct payment schemes are where the Secretary of State or a devolved authority considers that retained EU law governing the CAP direct payment schemes—

(a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant,

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

(c) makes 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,

which no longer exist or are no longer appropriate,

(d) makes provision for, or in connection with, other arrangements which—

(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 which no longer exist or are no longer appropriate,

(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which 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) contains EU references which are no longer appropriate, or

(g) contains anything which is of a similar kind to any deficiency which falls within paragraphs (a) to (f).

(6) Section 8(5) to (7), apart from subsection (7)(e), of the European Union (Withdrawal) Act 2018 (provision that may be made by regulations) apply in relation to regulations under subsections (1) and (3) but as if—

(a) references in those subsections to section 8(1) of that Act were to subsections (1) and (3) of this section, and

(b) the reference in section 8(7)(g) to paragraph 21(b) of Schedule 7 to that Act were to subsection (9)(b) of this section.

(7) Despite the application of section 8(7)(b) of the European Union (Withdrawal) Act 2018 (regulations may not make retrospective provision), provision made by regulations under subsection (1) or (3) may apply in relation to any rights, powers, liabilities, obligations, restrictions or other matters arising in relation to the CAP direct payment schemes for the whole of the claim year 2020.

(8) No regulations may be made under subsection (1) or (3) after 31 December 2020 (but this does not affect the continuation in force of regulations made before that date, including the exercise after that date of any power conferred by regulations made before that date).

(9) A power to make regulations under this section includes power—

(a) to make different provision for different purposes;

(b) to make supplementary, incidental, consequential, transitional or saving provision (including provision re-stating any assimilated law governing the CAP direct payment schemes in a clearer or more accessible way).

(10) In this section—

• “ devolved authority ” means—

  (a)

  the Scottish Ministers, so far as the assimilated law governing the CAP direct payment schemes applies in or as regards Scotland,

  (b)

  the Welsh Ministers, so far as that body of law applies in or in relation to Wales, or

  (c)

  DAERA, so far as that body of law applies in or as regards Northern Ireland;

• “ payment entitlements ” has the same meaning as in the Direct Payments Regulation;

• “ public authority ” means a public authority within the meaning of section 6 of the Human Rights Act 1998.

4 Publication and rules of evidence

(1) The duty in paragraph 1(1) of Schedule 5 to the European Union (Withdrawal) Act 2018 (things that must be published) does not apply in relation to—

(a) the Direct Payments Regulation;

(b) Commission Delegated Regulation (EU) No 639/2014Direct Payments Regulation;

(c) Commission Implementing Regulation (EU) No 641/2014Direct Payments Regulation.

(2) The Queen's Printer must make arrangements for the publication of the following EU regulations as published in the Official Journal of the European Union before exit day.

(3) The EU regulations are—

(a) the regulations listed in subsection (1);

(b) the regulations listed in sub-paragraphs (i) to (v) of section 1(3)(d).

(4) Subsection (2) does not require the publication of—

(a) anything repealed before exit day, or

(b) any modifications made on or after exit day.

(5) Assimilated direct CAP legislation is a “ relevant matter ” for the purposes of paragraph 4 of Schedule 5 to the European Union (Withdrawal) Act 2018 (power to make provision about judicial notice and admissibility).

Increase in direct payments ceilings for claim year 2020

5 Power to increase direct payments ceilings for 2020

(1) The Direct Payments Regulation is amended as follows.

(2) In Article 6(3), for “Article 14” substitute “ Articles 7A and 14 ” .

(3) In Article 7(3), after “pursuant to” insert “ Article 7A and ” .

(4) After Article 7 insert—

“ Article 7A

7A Increase in national and net ceilings

(1) The Secretary of State may, having regard to the recommendations contained in the report of the Bew Review, decide to increase the total maximum amount of direct payments that could otherwise be granted in relation to the claim year 2020.

(2) In this Article, the “ report of the Bew Review ” means the report entitled “Intra-UK Allocations Review” published on 6 September 2019. ”

(5) In Article 22(5), after “paragraph 3 of this Article,” insert “ Article 7A, ” .

Final provisions

6 Consequential and transitional provision

(1) The Secretary of State or the relevant national authority may by regulations make such provision as the Secretary of State or relevant national authority considers appropriate in consequence of this Act.

(2) The power to make regulations under subsection (1) may (among other things) be exercised by modifying any provision made by or under an enactment.

(3) Schedule 1 contains consequential provision.

(4) The Secretary of State or the relevant national authority may by regulations make such transitional, transitory or saving provision as the Secretary of State or relevant national authority considers appropriate in connection with the coming into force of any provision of this Act.

(5) But the Secretary of State may only make regulations under this section that apply (whether or not the regulations also apply in relation to England)—

(a) in or as regards Scotland,

(b) in or in relation to Wales,

(c) in or as regards Northern Ireland,

if the Secretary of State has obtained the required consent.

(6) For the purposes of subsection (5), the “required consent” is—

(a) the consent of the Scottish Ministers, if the regulations apply in or as regards Scotland,

(b) the consent of the Welsh Ministers, if the regulations apply in or in relation to Wales, and

(c) the consent of DAERA, if the regulations apply in or as regards Northern Ireland.

(7) In this section, “the relevant national authority” is—

(a) the Scottish Ministers, for regulations that apply only in or as regards Scotland,

(b) the Welsh Ministers, for regulations that apply only in or in relation to Wales, and

(c) DAERA, for regulations that apply only in or as regards Northern Ireland.

7 Regulations

Schedule 2 makes provision about regulations under this Act.

8 Interpretation

In this Act—

• “ assimilated direct CAP legislation ” has the meaning given by section 2;

• “ assimilated law governing the CAP direct payment schemes ” has the meaning given by section 2;

• “ CAP direct payment schemes ” has the meaning given by section 1;

• “ claim year ” has the meaning given by section 1;

• “ DAERA ” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;

• the “ Direct Payments Regulation ” has the meaning given by section 1;

• “ domestic law ” means—

  (a)

  in section 1, the law of England and Wales, Scotland and Northern Ireland, and

  (b)

  in any other provision, the law of England and Wales, Scotland or Northern Ireland;

• “ enactment ” includes—

  (a)

  an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,

  (b)

  an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,

  (c)

  an enactment contained in, or in an instrument made under, Northern Ireland legislation, and

  (d)

  any assimilated direct legislation;

• “ EU entity ” means an EU institution or any office, body or agency of the EU;

• the “ Horizontal Regulation ” has the meaning given by section 1;

• “ modify ” includes amend, repeal or revoke (and related expressions are to be read accordingly);

• ...

• ...

9 Extent, commencement and short title

(1) This Act extends to England and Wales, Scotland and Northern Ireland.

(2) Section 5 comes into force on exit day.

(3) The other provisions of this Act come into force on the day on which this Act is passed.

(4) This Act may be cited as the Direct Payments to Farmers (Legislative Continuity) Act 2020.

SCHEDULES

Section 6

SCHEDULE 1 Consequential provision

Existing ambulatory references to EU legislation becoming part of domestic law under section 1

1 (1) Any reference which, immediately before exit day—

(a) exists in—

(i) any enactment,

(ii) any provision of EU legislation listed in section 1(3) that is to form part of domestic law by virtue of section 1(1), or

(iii) any document relating to anything falling within sub-paragraph (i) or (ii), and

(b) is a reference to (as it has effect from time to time) any provision of EU legislation listed in section 1(3) that forms part of domestic law by virtue of section 1(1),

is to be read, on and after exit day, as a reference to the EU provision as it forms part of domestic law by virtue of section 1(1) and, unless the contrary intention appears, as modified by domestic law from time to time.

(2) Sub-paragraph (1) is subject to any other provision made by or under this Act or any other enactment.

Disapplication in relation to EU legislation becoming part of domestic law under section 1 of other provision relating to ambulatory references

2 Paragraph 2 of Schedule 8 to the European Union (Withdrawal) Act 2018 (interpretation of ambulatory references) does not apply to a reference to any EU legislation listed in section 1(3) that forms part of domestic law by virtue of section 1(1).

Meaning of “retained EU law” etc

3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7 (1) Sub-paragraph (2) applies in relation to the definitions of “assimilated law”, “assimilated direct legislation”, “assimilated direct minor legislation” and “assimilated direct principal legislation” in each of—

(a) Schedule 1 to the Interpretation Act 1978;

(b) section 55(2B)(d) of and Schedule 1 to the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) ;

(c) Schedule 1 to the Legislation (Wales) Act 2019 (anaw 4) ;

(d) section 44A of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.) .

(2) For the purposes of those definitions —

(a) EU legislation that forms part of domestic law by virtue of section 1(1) (as that body of law is added to or otherwise modified by domestic law from time to time) is to be treated as assimilated law,

(b) EU legislation that forms part of domestic law by virtue of section 1(1) (as modified by domestic law from time to time and including any instruments made under it on or after exit day) is to be treated as assimilated direct legislation,

(c) EU legislation listed in section 1(3)(a) and (d)(i) that forms part of domestic law by virtue of section 1(1) (as modified by domestic law from time to time) is to be treated as assimilated direct principal legislation, and

(d) EU legislation that—

(i) forms part of domestic law by virtue of section 1(1) (as modified by domestic law from time to time and including any instruments made under it on or after exit day), but

(ii) is not treated as assimilated direct principal legislation by virtue of paragraph (c),

is to be treated as assimilated direct minor legislation.

8 Nothing in paragraph ... 7 affects the meaning in the European Union (Withdrawal) Act 2018 of “assimilated law”, “assimilated direct legislation”, “assimilated direct minor legislation” and “assimilated direct principal legislation” .

Section 7

SCHEDULE 2 Regulations under this Act

Procedure for making regulations under this Act

1 A power to make regulations under this Act—

(a) so far as exercisable by the Secretary of State or the Welsh Ministers, is exercisable by statutory instrument, and

(b) so far as exercisable by DAERA, is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573) (NI 12) (and not by statutory instrument).

Scrutiny of regulations under section 3

2 (1) Regulations under section 3(1)(a) or (3)(a) are subject to made affirmative resolution procedure.

(2) Regulations under section 3(1)(b), (3)(b) or (4) are subject to affirmative resolution procedure.

Scrutiny of regulations under section 6(1)

3 Regulations under section 6(1) are subject to negative resolution procedure.

Regulations subject to made affirmative resolution procedure

4 Where regulations under this Act are subject to made affirmative resolution procedure—

(a) if made by the Secretary of State—

(i) the statutory instrument containing the regulations must be laid before Parliament after being made, and

(ii) the regulations cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made, unless within that period the instrument is approved by a resolution of each House of Parliament;

(b) if made by the Scottish Ministers—

(i) the regulations must be laid before the Scottish Parliament after being made, and

(ii) the regulations cease to have effect at the end of the period of 28 days beginning with the day on which they are made, unless within that period the regulations are approved by a resolution of the Scottish Parliament;

(c) if made by the Welsh Ministers—

(i) the statutory instrument containing the regulations must be laid before the National Assembly for Wales after being made, and

(ii) the regulations cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made, unless within that period the instrument is approved by a resolution of the National Assembly for Wales;

(d) if made by DAERA—

(i) the regulations must be laid before the Northern Ireland Assembly after being made, and

(ii) the regulations cease to have effect at the end of the period of 28 days beginning with the day on which they are made, unless within that period the regulations are approved by a resolution of the Northern Ireland Assembly.

5 In calculating the period of 28 days for the purpose of paragraph 4(a), no account is to be taken of any time during which—

(a) Parliament is dissolved or prorogued, or

(b) either House of Parliament is adjourned for more than 4 days.

6 In calculating the period of 28 days for the purpose of paragraph 4(b) or (c), no account is to be taken of any time during which the Scottish Parliament or the National Assembly for Wales, as the case may be, is—

(a) dissolved, or

(b) in recess for more than 4 days.

7 In calculating the period of 28 days for the purpose of paragraph 4(d), no account is to be taken of any time during which the Northern Ireland Assembly is—

(a) dissolved,

(b) in recess for more than 4 days, or

(c) adjourned for more than 6 days.

8 Where regulations cease to have effect as a result of paragraph 4, that does not—

(a) affect the validity of anything previously done under the regulations, or

(b) prevent the making of new regulations.

Regulations subject to affirmative resolution procedure

9 Where regulations under this Act are subject to affirmative resolution procedure, the regulations—

(a) if to be made by the Secretary of State, may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament;

(b) if to be made by the Scottish Ministers, are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10));

(c) if to be made by the Welsh Ministers, may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the National Assembly for Wales;

(d) if to be made by DAERA, may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

Regulations subject to negative resolution procedure

10 Where regulations under this Act are subject to negative resolution procedure—

(a) if made by the Secretary of State, the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament;

(b) if made by the Scottish Ministers, the regulations are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010);

(c) if made by the Welsh Ministers, the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of the National Assembly for Wales;

(d) if made by DAERA, the regulations are subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.

Combination of regulations

11 Any provision that may be made by regulations under this Act subject to negative resolution procedure may be made by regulations subject to affirmative resolution procedure or made affirmative resolution procedure.