Laws constantly change and evolve – they rarely stay still. But the UK’s withdrawal from the EU presents a significant legislative challenge because so many laws need to be changed in a relatively short period of time.
The scale of the challenge means that UK Government Ministers and Scottish Government Ministers have been given special temporary powers to make sure that Scotland still has a workable statute book (laws) on the day the UK leaves the EU. The Scottish Parliament has created a short animation to explain how it is preparing Scotland’s laws for Brexit.
This blog looks at the progress made to date to ensure that workable laws are in place for Scotland on the day the UK leaves the EU.
Why do Scotland’s laws need to change?
Many of Scotland’s laws come from having been part of the EU. The European Communities Act 1972 brought the UK into the EU and gave EU law precedence over UK law. A lot of EU law which is effective across the UK relies on the 1972 Act.
The European Union (Withdrawal) Act 2018 repeals the 1972 Act and converts EU law which applies directly to the UK into domestic law as retained direct EU law.
In many cases the conversion into domestic law will be effective, but in others it has the potential to lead to the law being unclear or not working as intended unless changes are made to reflect that the UK is no longer a Member State of the EU. This could include things like the law on the nutrition and health claims made on food or on ensuring environmental protection in marine areas. It could even be that a small change is required, like the need to remove a reference to an EU institution. A lack of clarity about what the law is can create uncertainty for businesses and for individuals.
What is the process to prepare Scotland’s laws?
Acts of Parliament (primary legislation) often provide powers for Ministers to make more detailed legislation (known as orders or regulations) through statutory instruments. Statutory instruments are also sometimes known as secondary legislation, delegated legislation or subordinate legislation. More detail about statutory instruments is available on the Scottish Parliament’s website.
Under the European Union (Withdrawal) Act 2018 both UK and Scottish Government Ministers have special powers to make regulations to correct deficiencies in converted EU law to ensure the statute book is ready for Brexit. In some cases where the UK Government and the Scottish Government wish to pursue the same policy objective, the Scottish Government can ask the UK Government to lay statutory instruments that include proposals relating to devolved areas of responsibility.
What is the Scottish Parliament’s role?
The Scottish Government made a commitment to the Scottish Parliament that it would have a scrutiny role in saying whether Scottish Ministers should ask the UK Government to make secondary legislation which relates to devolved areas. The Scottish Government and the Scottish Parliament worked together to develop a protocol for scrutinising proposals for EU statutory instruments under the European (Withdrawal) Act 2018. The protocol means that the Scottish Parliament is informed of any proposals which may result in UK statutory instruments on devolved policy areas and is asked to approve the Scottish Ministers’ proposal to consent to the statutory instrument.
If you want to find out more about the protocol for scrutinising statutory instruments, an infographic is available. There is also an infographic to explain the scrutiny process for Scottish statutory instruments (secondary legislation) made by Scottish Ministers under the European Union (Withdrawal) Act 2018.
What’s the state of play?
At 20 March 2019, the Scottish Government has asked the Scottish Parliament to approve its proposed consent to 130 statutory instruments relating to devolved areas of policy being made by the UK Government. A full breakdown of the statutory instruments proposed and their status is available It is important to note that the numbers provide a snapshot in time and will change as more SIs complete their parliamentary stages or are made.
67 of the 130 statutory instruments considered by the Scottish Parliament have been made and will come into force on exit day, or on the day set out in the regulation. The Common Fisheries (Transfer of Functions) (EU Exit) Regulations 2019 is no longer required. 62 have not yet been made. This means that, should the UK leave the EU before these statutory instruments are made, there is a risk that the domestic law governing these areas will not work as intended.
82 of the required 129 are subject to the affirmative procedure; 46 are subject to the negative. The Competitiveness of Enterprises and Small and Medium-Sized Enterprises (Revocation) (EU Exit) Regulations 2019 has an expected laying date of 4 April.
Of the 82 subject to the affirmative procedure: 23 have been made; 25 have been approved by Lords and the Commons, and 34 are awaiting completion of parliamentary stages.
44 of the 46 SIs subject to the negative procedure have been made. The Intelligent Transport Systems (EU Exit) Regulations 2018 and the Regulation (EC) No 1370/2007 (Public Service Obligations) (Amendment) (EU Exit) Regulations 2019 have not yet been made.
The process of ensuring that domestic law is fit for purpose will continue after Brexit day. Due to the scale of the task, priority has been given to correcting those areas of law considered most important. Further primary and secondary legislation will be required to make sure that the whole of the Scottish statute book still works effectively following exit from the EU.
Sarah Atherton, Senior Researcher, Parliament and Constitution