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.
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. This is known as the “keeping pace” power). At this stage, Scottish Ministers have not used the keeping pace power and they have indicated they have no plans to use it.
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. Scottish Ministers laid drafts of the first Policy Statement and Annual Report on 29 October 2021. The Parliament’s Constitution, Europe, External Affairs and Culture Committee wrote to the Cabinet Secretary on 25 November 2021 making a number of recommendations on the content of the draft policy statement and annual report.
SPICe has previously published a briefing on alignment with EU law and the Continuity Act and a blog on scrutinising the Scottish Government’s commitment to EU alignment.
The updated policy statement and annual report
On 10 May 2022, the Scottish Government laid an updated draft statement of policy and an annual report. The Scottish Government also laid a document setting out how it had regard to representations made when the original draft statement of policy and draft annual report were laid in October 2021. This blog sets out how the Scottish Government has considered the Constitution, Europe, External Affairs and Culture Committee’s recommendations made in its letter and the Committee’s response to the updated reports.
The draft statement of policy
The new draft policy statement reaffirms the Scottish Government’s commitment to continued alignment where it considers appropriate, adding that this can be achieved through legislative and non-legislative means and not just through the use of the keeping pace power. The draft statement of policy sets out where the keeping pace power might be used:
“Where the power in section 1 of the Act will have its place is in 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 draft statement of policy also acknowledges that decisions about continued EU alignment will be affected by whether an EU provision is relevant to a non-member state. It also highlights other factors such as the impact of the UK Internal Market Act “and the constraints it places on devolved powers raises significant challenges in respect of achieving the desired policy effect”. Other influencing factors highlighted include the EU-UK Trade and Cooperation Agreement and existing international obligations.
The draft statement of policy also reiterates the commitment of Scottish Ministers to considering the purpose referred to in section 2(1) of the Continuity Act when considering use of the keeping pace power:
“i.e. to contribute towards maintaining and advancing standards in, but not limited to, environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights, and social protection.”
The annual report
As with the previous version, the now final annual report states that for the reporting period 29 March 2021 – 31 August 2021 and for the intended future use of the power during the upcoming reporting period, Scottish Ministers have not used the keeping pace power and they have no plans to use it. The next annual report will be made following 31 August 2022 at the end of the current reporting period.
How Scottish Ministers have had regard to the Committee’s recommendations
As required by sections 7(4) and 11(5) of the Continuity Act, The Scottish Government has set out how it has had regard to representations made about the draft statement of policy and draft annual report in preparing the revised statement and finalised report. A table showing how the Scottish Government considered the Committee’s views in updating the draft statement of policy is available in the SPICe paper prepared for the Constitution, Europe, External Affairs and Culture Committee.
The Scottish Government’s revised draft statement of policy shows some changes which take on board the recommendations of the Committee. These include a commitment to work with Scottish Parliament officials to develop proposals to facilitate effective scrutiny of the commitment to align with EU law. The Scottish Government has also committed to provide information annually on the EU’s legislative priorities based on the European Commission annual work programme and the six-monthly Council of the EU presidencies.
In relation to Scottish Parliament legislation, the Scottish Government has updated its draft policy statement to note that where relevant policy notes are provided for legislation, such as SSIs, the Scottish Government will include references to consideration of EU alignment and that the Scottish Government will seek to include such information within relevant formal consultations. The draft statement of policy has also been updated to note that the Business and Regulatory Impact Assessment (BRIA) process is being updated and will detail the need to consider and assess any relevant impacts of the proposed measure on the Scottish Government’s commitment to maintain alignment with the EU and the UK Internal Market Act.
On consultation, the Scottish Government has committed to consult those affected by Ministers’ policy decisions and considers this would include local government, the Scottish Parliament, civic organisations and other organisations.
Whilst the Scottish Government has made a number of commitments in response to the Committee’s report, a number of issues remain around transparency and scrutiny. For example, it is still not clear from the draft statement of policy how the Scottish Government will make decisions about what EU law to align with and what they choose not to align with for policy reasons. In addition, there is no commitment to set out which EU laws the Government has considered from an alignment perspective but decided not to align with.
Linked to this, an ongoing issue for the Parliament will be the absence of an overview of the areas where Scottish Ministers have either chosen to align, or not to align, and as a result where Scots law has diverged from EU law.
The Scottish Government’s decision not to use the keeping pace power and its indication that it has no immediate plans to use it will exacerbate this issue. This is because the reporting requirements included in the Continuity Act, namely the statement of policy and the annual report, relate only to the use of the keeping pace power and not EU alignment in general.
The Constitution, Europe, External Affairs and Culture Committee considered the Scottish Government’s annual report and updated draft statement of policy at its meeting on 26 May 2022. The Committee wrote to the Cabinet Secretary for the Constitution, External Affairs and Culture to set out its concerns about the revised draft policy statement. The Committee highlighted a number of issues:
- That the revised statement of policy does not address some of the issues with regards to transparency and Ministerial accountability. The Committee wrote that it is not clear from the draft policy statement how the Scottish Government will make decisions about which EU laws to align with or not.
- The Committee expressed concern that there is no commitment to set out which EU laws the Scottish Government has decided not to align with. and that there is need for more transparency around the decision-making process regarding EU alignment.
- The Committee also expressed concern that not providing details of public consultations which include consideration of whether or not to align with EU law on the basis that it is not proportionate cuts across the need for transparency and accountability.
- Finally, the Committee requested a response to its previous recommendation that a Memorandum of Understanding (MoU) between the Scottish Government and Scottish Parliament should be considered by officials in developing proposals to facilitate effective scrutiny of the commitment to align with EU law.”
The Continuity Act states that the policy statement can’t be published without parliamentary approval but that approval is automatic unless the Parliament expressly chooses not to give it during the 28 day period. Given the draft policy statement was laid on 10 May, the 28-day period for scrutiny open to the Parliament ends on Tuesday 7 June. If, during the 28-day period the Parliament resolves that the final policy statement as laid should not be approved, Scottish Ministers must review and revise the policy statement having regard to any views expressed by the Parliament. In that situation, the further revised draft would once again require parliamentary approval.
Iain McIver, SPICe Research