How is Scottish law being prepared for Brexit?

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Lots of current laws in Scotland come from the EU and will not operate properly after Brexit. To reduce uncertainty changes have to be made to the laws before 29 March 2019 to ensure that the laws will still function after Brexit.

The methods being used to make these changes include the use of secondary legislation.

What is secondary legislation?

Secondary legislation is law which comes from a “parent” Act.  Under an Act of the Scottish Parliament, a lot of the detail of regulation and procedure is often left to secondary, or subordinate, legislation.  The Parliament will shortly be considering a potentially large number of pieces of secondary legislation relating to Brexit.

Secondary legislation is normally in the form of Scottish statutory instruments (SSIs).  These are considered by the Parliament under a number of different procedures (set out below). Importantly, unlike primary legislation (Bills), a piece of secondary legislation cannot be amended in the Scottish Parliament before it comes into force.

The primary legislation (the parent Act) which gives the power to make the instrument to the Government will specify which procedure must be used.

This blog first looks at the different procedures involved, before discussing some general issues around secondary legislation, and then setting out what is likely to happen with Brexit SSIs.

What are the different procedures?

The four more usual procedures for making secondary legislation are:

  • Laid only: instruments are laid before the Parliament for technical scrutiny only after they have been made
  • Negative: a negative instrument comes into force on the date specified in the SSI, unless a MSP lodges a motion to annul (reject) the instrument and the Scottish Parliament agrees that motion in the Chamber
  • Affirmative: an instrument subject to the affirmative procedure must be approved by the Parliament before it can be made. It will be the subject of a report by a lead committee, which will have discussed the draft instrument, heard from the relevant Minister, and voted on whether to recommend that the Parliament approve or not approve it. Whether or not the Committee recommends approval, the whole Parliament then has the opportunity to decide on a motion to approve, or not approve, the instrument.
  • Super-affirmative: this is not a standard procedure, but an enhanced form of the affirmative procedure, which will be described in the parent Act. It involves a consultation being held on a draft instrument, prior to it being finally laid for approval in the Parliament. A draft instrument is required to be laid initially before the Parliament for a number of days, along with an Explanatory Document. After the specified days have elapsed, and after Ministers have considered any comments on the draft, the instrument is finally laid for a decision on approval by the Parliament.

The Delegated Powers and Law Reform Committee (DPLRC) and SPICe have produced an infographic which sets out how SSIs are considered by the Scottish Parliament.

Issues raised about the use of secondary legislation

There are concerns around the potentially extensive use of secondary legislation, relating to the potential for a lack of parliamentary scrutiny of statutory instruments at Westminster, unlike the scrutiny of SSIs at Holyrood.

Other concerns about the use of secondary legislation to make laws include:

  • the use of framework Acts, where the detail of how the legislation works in practice will be set out in secondary legislation
  • quantity of secondary legislation – between 2010 and 2017, there have been between 360 and 471 SSIs per year. Although it should be noted that these figures, taken from the website, include local SSIs, not usually made by Scottish Ministers, and not subject to parliamentary scrutiny.

Secondary legislation and Brexit

The latter concern, about the quantity of secondary legislation, has become an active issue in the run up to Brexit, as the Parliament has been warned by the Scottish Government to expect between 100 and 200 extra instruments over the next six months. The extra instruments will be required to be laid to ensure that Scottish laws are still operational after the UK leaves the European Union and will be made under powers in the European Union (Withdrawal) Act 2018.

The Scottish Government will produce a protocol setting out how the Scottish Parliament is expected to deal with additional SSIs. The protocol is being developed by officials in the Scottish Parliament and Scottish Government.

The officials have already produced a Protocol on obtaining the approval of the Scottish Parliament to the exercise of powers by UK Ministers under the European Union (Withdrawal) Act 2018 in relation to proposals within the legislative competence of the Scottish Parliament, which the Scottish Government issued.

The protocol sets out how the Scottish Government will notify the Scottish Parliament when it proposes to consent to the UK Government laying UK statutory instruments (SIs), ensuring that Scottish laws still work effectively after the UK leaves the European Union.

This protocol sets out three different categories of SIs, which may require differing responses from the Scottish Parliament, although Committees are free to scrutinise any of the notifications they receive:

  • Category A are expected to be minor and technical in nature, ensuring continuity of law in Scotland. For example, they may update references to terms which will have no relevance after the UK leaves the EU
  • Category B are expected to be more significant in nature than category A and may warrant subject committee scrutiny. For example, they may transfer functions from an EU body to a Scottish public body, or may transfer EU legislative powers to a UK public body
  • Category C are expected to be subject to a joint procedure in the UK and Scottish Parliament, as set out in paragraph 2 of Schedule 7 of the 2018 Act. The protocol does not give example of this category of instrument.

The DPLRC is maintaining a webpage, Secondary legislation stemming from the European Union (Withdrawal) Act 2018, which is a complete list of consent notifications, with details of the relevant committee and its response.

Further information

You can find further information in the Guide to Scottish Statutory Instruments, which includes an brief introduction to the work of the DPLRC, in particular its role in scrutinising SSIs, including super-affirmative instrument