In its 2021 Programme for Government, the Scottish Government committed to continued alignment with EU standards and laws following EU exit.
This blog looks at the commitments made by the Scottish Government in making decisions about EU alignment and its first draft reports on the operation of the Continuity Act.
A SPICe Briefing on Alignment with EU Law and the Continuity Act was published on 29 October 2021. The Constitution, Europe, External Affairs and Culture Committee launched a call for views on the Scottish Government’s first draft Policy Statement and first Annual Report on the same day.
Alignment with EU law
Following the UK’s departure from the EU there is no longer a requirement to continue to comply with EU law. However, Scottish Ministers have indicated that, where appropriate, they would like to see Scots Law continue to align with EU law.
Whilst Scottish Ministers have a number of different legislative options for securing that alignment, Part 1 (section 1(1)) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (referred to in this blog as “the Continuity Act”) confers a power on Scottish Ministers to allow them to make regulations (secondary legislation) with the effect of continuing to keep Scots law aligned with EU law in some areas of devolved policy (the “keeping pace” power).
Scottish Government commitments during the passage of the Continuity Act
Throughout Parliament’s consideration of the Continuity Act, the Scottish Government committed to work with the Parliament to agree an appropriate and proportionate decision-making framework for future alignment with EU law. The then Cabinet Secretary for the Constitution, Europe and External Affairs told the Finance and Constitution Committee during stage one consideration of the Continuity Bill:
“I want to make clear that the Scottish Government intends to work with the Parliament to agree an appropriate and proportionate decision making framework for future alignment with EU law. We all agree that decision making on the issues on which we might wish to align with EU law will vary, depending on the specific measures that are being considered…
…I am more than happy to commit to liaising with the Parliament to allow the Scottish Government to consider how, at the earliest stage of policy development, we can build in an appropriate level of consultation with the Parliament and stakeholders.”
Building on this, the Cabinet Secretary told the Parliament:
“It remains the Government’s view that using such a framework to provide for an appropriate level of consultation at the earliest stage of policy development is preferable to devising and prescribing procedural requirements to take effect at the end of the process. We are committed to publishing information on the factors that will be considered when deciding whether alignment is appropriate.”
This commitment was highlighted in the Legacy Expert Panel Report to the Finance and Constitution Committee:
“The Scottish Government also committed to working with the Parliament to agree an appropriate and proportionate decision-making framework for future alignment with EU law. The Committee agreed that the Parliament should focus on early engagement in the policy process.”
The Parliament’s new Constitution, Europe, External Affairs and Culture Committee wrote to the Cabinet Secretary for Constitution, External Affairs and Culture on 22 September 2021 to request that Scottish Parliament and Scottish Government officials work together to agree a framework for future EU scrutiny following Brexit. The Scottish Government is yet to respond to the Committee.
From a Scottish Parliament perspective, this commitment from the Scottish Government is important because it should ensure Parliamentary involvement in decisions about where to align with EU law and where alignment is not considered necessary. As the Finance and Constitution Committee legacy paper indicates, the commitment ran wider than decisions related to the use of the keeping pace power in the Continuity Act and was intended to cover all decisions around EU alignment.
The Continuity Act reports
Whilst the Scottish Government is yet to engage in discussions with the Scottish Parliament about the development of a decision-making framework, the Continuity Act requires Scottish Ministers to lay reports (first in draft form for consultation and then a final version) before the Scottish Parliament on the intended and actual use of the keeping pace power. There are two forms of reporting to Parliament:
- a Policy Statement setting out policy on, and how decisions will be made about, the use of the keeping pace power, and;
- an Annual Report explaining how the power has been used during the reporting period, and how Scottish Ministers intend to use it in future.
Scottish Ministers laid drafts of the first Policy Statement and Annual Report on 29 October 2021, thus starting the 28 day consultation period.
The Policy Statement
In line with the commitment made in the Programme for Government, the Policy Statement reaffirms the aim of continued alignment with EU law adding that:
“Maintaining alignment with EU law and the high standards that Scotland has enjoyed as part of the EU is a priority of the Scottish Ministers.”
Despite the keeping pace power available to Scottish Ministers, the Policy Statement is clear that the Scottish Government’s commitment to EU alignment will be implemented primarily through the use of primary legislation or powers that Scottish Ministers already have to make secondary legislation without the need to use the keeping pace power. As a result, the Policy Statement suggests that:
“The power in section 1 of the Act is intended for circumstances in which secondary legislation is the most appropriate vehicle for maintaining alignment and specific powers are not available, or not appropriate, to give effect to the policy intention of the measure proposed.”
The Annual Report
In line with the statements in the Policy Statement suggesting use of the keeping pace power will be a fall back where other measures aren’t appropriate or available, the short Annual Report makes three key statements:
- The keeping pace power has not been used over the reporting period.
- Ministers have no current plans to use the keeping pace power under section 1(1) of the Act.
- Ministers have not considered use of the keeping pace power during the reporting period.
Given the next reporting period runs until the end of August 2022, Scottish Ministers are now not required to provide an update detailing the use and considered use of the keeping pace power for another 12 months (given the report must be published within two months of the end of the reporting period).
What about alignment since Brexit?
The Scottish Government’s stated policy is to ensure alignment with EU law where appropriate. But at the same time Scottish Ministers have not used and do not intend to use the keeping pace power. This therefore presents a real challenge for Scottish parliamentary scrutiny.
The statutory reporting requirements set out in the Continuity Act relate only to use of the keeping pace power. However, the Scottish Government has indicated that it will seek to ensure continued alignment with EU law using other legislative vehicles such as primary legislation, or powers for secondary legislation provided for in other primary acts. But, as noted above, there is agreement that decisions about alignment should be covered by the development of a decision-making framework in conjunction with the Scottish Parliament.
Because the requirement on the UK to continue to observe EU law fell away at the end of the transition period (end of December 2020), there has been no requirement for Scottish Ministers to ensure continued observance of EU law in areas of devolved competence for over ten months.
In addition, as EU member states usually have up to two years to transpose some EU legislation into national law, a number of areas of EU law agreed before the end of the transition period may also not have been transposed into Scots Law – but at present this information is not available. The Constitution, Europe, External Affairs and Culture Committee, in line with the legacy papers of its Session 5 predecessor committees, has written to the Cabinet Secretary for the Constitution, External Affairs and Culture regarding the extent to which the Scottish Government can provide the Parliament and its committees with regular updates on developments in EU law within their respective remits.
To support Parliamentary scrutiny of the use of the keeping pace power, it will also be important that Parliament is able to understand which areas of EU law Scottish Ministers have chosen not to align with and the reasons for that. For this reason, committees have been clear that parliamentary involvement in the development of the decision-making framework is important. Knowledge about decisions on where to align or not align would mean Parliament has the complete picture when it comes to considering the Scottish Government’s policy commitment to continued EU alignment.
Conclusion
Whilst the Scottish Parliament is now required to consider the Continuity Act draft reports for the first time since the Act was passed in late 2020, the absence of an agreed decision-making framework for decisions about alignment with EU law makes scrutiny of the Scottish Government overall commitment to align with EU law “where appropriate” challenging.
The UK left the EU’s legal framework over ten months ago. And so, from a parliamentary perspective, the need for an agreed approach to decision making about alignment with EU law, and scrutiny of those decisions, runs wider than scrutiny of the Continuity Act statutory reports.
Iain McIver, SPICe Research