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A Noble Quest: Understanding devolved competence after Brexit

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SPICe frequently receives enquiries from MSPs asking whether a specific issue or policy area is reserved to the UK Parliament under the Scotland Act 1998, or not reserved (i.e. ‘devolved’ to the Scottish Parliament). Some of these questions are more complex than others, but prior to Brexit, the route to figuring out the answer was familiar to us.

EU law had primacy over areas of domestic law and the EU had exclusive competence to legislate in certain areas.  The Scottish Parliament could only legislate in areas not reserved to the UK Parliament and it could not legislate in a way that was incompatible with EU law.

Now that the UK has left the EU, the practical and legal framework of devolution has become a more complex domain.

In this blog, we’ll use a recent example of what seems like a simple question:

If the UK Government authorises the use of a pesticide previously banned by the EU, can that pesticide be used in Scotland?

We’ll use this example to explain the complications of untangling this web of devolved competence in the new post-Brexit legal landscape.

We’ve taken a slightly unusual tack in this blog, to try to demonstrate how complex this type of enquiry has now become, and we hope readers find it engaging.  So, join us on our noble quest to understand devolved competence for the authorisation of pesticides post-Brexit.  

Once upon a time before Brexit

A long time ago in a kingdom not far away…(The United Kingdom before 2021 to be precise), the EU was responsible for the authorisation of plant protection products (that’s pesticides to you and me) for use in the EU single market.

You’re probably thinking “I wonder what EU law covered that?”. We’re glad you asked. It is of course Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market. We’ll just call it ‘Reg 1107/2009’ from now on.

This regulation allowed the EU to determine a list of pesticides that are permitted to be used in the EU single market. Member States could then decide which pesticides on this list to allow for use in their territories. However, any pesticide banned by the EU, such as neonicotinoids (banned as a result of their impact on bees), could not be sold or used in the UK.

Measures for enforcing Reg 1107/2009 were set out in UK law in the Plant Protection Products Regulations 2011. The control of pesticides is not reserved under Schedule 5 of the Scotland Act 1998. This means it is a devolved matter and, within the EU framework for pesticide authorisation, Scottish Ministers could choose to withdraw a pesticide product authorisation for use at Scottish level because Scottish Ministers are the designated competent authority for Scotland.

Scottish Ministers could not approve the use of pesticides banned by the EU, due to the primacy of EU law.  In practice, the UK Health and Safety Executive dealt with authorisations on behalf of the Scottish Government (more below), but this did not change the fact that regulation of pesticides was devolved.

Knowing all of this, before 2021 we would reach the conclusion that the use of pesticides in Scotland was the responsibility of the Scottish Ministers because it is devolved, and although authorisation was an EU competence, Member States (and their devolved territories) could opt out of using any pesticide approved by the EU. It was a relatively straightforward journey to reach that conclusion don’t you think?

Image showing a fantasy map with a dotted line showing a route through the legislation that needs to be checked to understand devolved competence before Brexit.

Fast forward to post-Brexit

Let’s return to the beginning of our journey in the present day and start over. How do we answer our original question in a post-Brexit world?   

To prepare for EU Exit, a substantial legislative operation was required to ensure the law within the UK, including Scots law, was fit for purpose after Brexit. This involved transferring most of EU law into domestic law, known as ‘retained EU law’. The transfer happened automatically on the day implementation was completed (31 December 2020) under section 3 of the European Union (Withdrawal) Act 2018. Therefore, our starting point is to check the law regarding pesticides after it was transferred into UK law. For that, we need to scramble our way through the dark caverns of ‘retained EU law’.

The dark caverns of retained EU law

If EU law, as it was written, was simply copied and pasted into UK or Scots law, it wouldn’t work properly. The result would be gaps, errors and ultimately unintended consequences. Together these gaps, errors and unintended consequences are known as ‘deficiencies’.

A great deal of work was done to make sure that laws in the UK work properly now that the Brexit transition period has ended. This undertaking was largely achieved using secondary legislation, sometimes also known as ‘delegated’ or ‘subordinate’ legislation, under the European Union (Withdrawal) Act 2018.

Secondary legislation is law created by Ministers (or other bodies) under powers given to them by an Act of Parliament. It is used to fill in the details of Acts (primary legislation). These details provide practical measures that enable the law to be enforced and operate in daily life.

The most commonly used type of secondary legislation is ‘statutory instruments’. Secondary legislation made by UK Ministers are known as statutory instruments (SIs) or Scottish statutory instruments (SSIs) when made by Scottish Government Ministers. These instruments are documents drafted by the government to make law under the powers derived from its parent Act.

In some cases, the changes made by SIs under the European Union (Withdrawal) Act were very small – removing references to EU institutions, for example. In other cases, they were more significant – such as changes in regulatory requirements. This work is ongoing as some of the lower priority deficiencies still remain to be fixed.

To check if there were any changes to the authorisation process for pesticides, we need to track down the relevant SIs. In this case, ‘The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019’ was the main SI that dealt with deficiencies in transferring reg 1107/2009 into domestic law.

Looking at the SI, we can see that it transfers the responsibility for the authorisation of pesticides from the EU to the UK by establishing a UK stand-alone regulatory regime with minimal modifications and no significant policy changes. It does not alter the ability of governments in England, Scotland and Wales to make regulations or exercise functions for their own territories. Northern Ireland will continue to operate under the EU framework for the authorisation of pesticides due to provisions of the Northern Ireland Protocol.

And there we have it. After checking devolved competence under the Scotland Act and the relevant retained EU law we’ve found that Scottish Ministers continue to have powers to authorise the use of pesticides in Scotland. We can lay down our shield and sword and rest our weary heads.

But wait…what’s this up ahead, emerging from the mist? It’s the Internal Market Act 2020!

The UK Internal Market Act 2020

The aim of The UK Internal Market Act 2020 is to preserve the UK’s internal market. The explanatory notes of the Act state its purpose is to provide “continued certainty for people and businesses so that they can work and trade freely across the whole of the UK.”

But this Act presents another potential curveball on our quest for understanding devolved competency. It comes in the form of the ‘mutual recognition principle’.This provides that goods that have been produced in, or imported into, one part of the UK and comply with relevant requirements there, can then be sold in any other part of the UK (even if they do not meet the requirements that apply in that other part).

Does this mean that a pesticide that is authorised for sale in England can therefore automatically be used in Scotland?

To answer that, we must check the ‘exclusions from market access principles’ listed in Schedule 1 of the Act. What do we find? Paragraph 10 says:

“The mutual recognition principle for goods does not apply to (and section 2(3) does not affect the operation of) any of the following –

(a) Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market (etc), as it forms part of retained EU law;

(b) the Plant Protection Products Regulations 2011 (S.I. 2011/2131); (c) the Plant Protection Products Regulations (Northern Ireland) 2011 (S.R. (N.I.) 2011 No. 295).

(c) the Plant Protection Products Regulations (Northern Ireland) 2011 (S.R. (N.I.) 2011 No. 295).” (emphasis added)

It’s our good old friend reg 1107/2009! We’ve discovered that the mutual recognition principle does not apply to pesticides and we’ve defeated another foe.

You must be thinking that we’re nearly there by now. But hold your horses, there’s one more problem to overcome before we uncover the truth. It’s the enchanted forest of Common Frameworks.

Image showing a fantasy map with a dotted line showing a route through the legislation that needs to be checked to understand devolved competence after Brexit.

The enchanted forest of Common Frameworks

The enchanted forest of Common Frameworks is a disorientating place. The term ‘Common Frameworks’ is used to describe an agreed approach to a particular policy across the nations of the UK, including the implementation and governance of it.

During its membership of the EU, the UK and devolved governments were required to comply with EU law. This ensured that in many policy areas, including some that are devolved, a broadly consistent approach developed across all four nations.

Common frameworks are being developed in the UK to put in place common approaches post-Brexit. They will manage policy and regulatory divergence between UK nations to limit any divergence that would be undesirable (e.g. causing competitive economic advantage/disadvantage or incompatible environmental standards).

There are five phases of development that a Common Framework must go through and Schedule 3 of the European Union (Withdrawal) Act 2018 requires the UK Government to report to the UK Parliament every three months on progress in the development of Common Frameworks. Common Frameworks can be implemented through legislation (primary, secondary or both), or through more informal agreements between the governments of the UK such as Memorandums of Understanding or Concordats.

In the case of pesticides, as mentioned above, all UK administrations have “sub-contracted” the exercise of their functions of authorising pesticides to The Health and Safety Executive. This was the case before Brexit and will continue to be how authorisation will work, except for Northern Ireland which will operate under the EU regulatory regime. This does not mean that Scottish Ministers have handed over their powers. They continue to have legal responsibility for authorisation of pesticides in Scotland and can diverge from the rest of the UK if they wish. A Common Framework for chemical and pesticides is currently under development, so the long-term post-Brexit arrangements for pesticide authorisation have yet to be fleshed out.

It’s important to identify Common Frameworks because they may have an impact on the powers and competencies of Scottish Ministers, either in law, or in how things are done in practice.

Now that’s all been cleared up, we have at last reached our journey’s end and we can finally reveal the simple answer to our seemingly simple question – No – It’s the same answer we reached in the pre-Brexit era, but we hope you enjoyed the rather convoluted quest to get here.

Damon Davies

Environment, Rural, Constitution and International Research

Title Image by Stefan Keller from Pixabay