The continuing challenge of scrutinising alignment with EU law

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SPICe has published a number of blogs and briefings analysing how the Scottish Parliament can scrutinise the Scottish Government’s commitment to alignment with EU law and include: 

This latest blog focuses on the importance of tracking EU law to inform scrutiny of alignment decisions, along with the Scottish Government’s latest draft annual report on its use of the “keeping pace” power in the Continuity Act

Scottish Government commitment to 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. 

This commitment to alignment was expressed most recently in the Scottish Government’s Statement of Policy for the Continuity Act, which was approved by the Scottish Parliament in June 2021.

How EU alignment can be achieved

The Scottish Government can legislate to ensure continued alignment with EU law in a number of ways.  They could use primary legislation, secondary legislation using powers from a relevant primary act, or they could use the “keeping pace” power provided in Section 1 of the Continuity Act.

The Scottish Government’s Statement of Policy, as approved by the Scottish Parliament in June 2022 indicates that the Scottish Government plans to use all these different methods as appropriate:

“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. This will be achieved in a range of different ways, legislative and non-legislative. The Scottish Ministers will make use of whichever means is most appropriate for the circumstances of each case.”

The Statement of Policy goes on to set out where it is likely the “keeping pace” power will 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.

Tracking EU law

Recognising the need for the Scottish Parliament to scrutinise the Scottish Government’s commitment to EU alignment, the Constitution, Europe, External Affairs and Culture Committee (CEEAC) asked SPICe to commission research setting out all the significant EU legislation which comes within the scope of the Scottish Government’s policy commitment to continued EU alignment.

The research was produced by Dr Lisa-Claire Whitten from Queen’s University Belfast. It sets out a tracker illustrating the specific instruments of EU law that are likely to be within the scope of the Scottish Government’s commitment to EU alignment.  SPICe will publish a further blog summarising the research during December.

The tracker provides the Parliament with a proportionate approach to monitoring EU legislative developments across devolved policy areas.  It focuses on the policy areas identified as priorities in Section 2(1) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, these are:

  • environmental protection
  • animal health and welfare
  • plant health
  • equality, non-discrimination and human rights
  • social protection.

The primary purpose of the tracker is to provide transparency and allow Parliamentary committees, stakeholders including business, and the public, to track relevant developments in EU law.  This will allow business and civil society in Scotland to continue to be aware of EU legislative developments which may affect them.  It will also assist the Parliament in scrutinising the Scottish Government’s commitment to EU alignment.  Following the Committee’s consideration of the tracker, it agreed to commission an EU law tracker to be based on that developed by Dr Whitten and to be updated twice a year (in January and September).  This commissioning work is ongoing.

Scottish Government’s Continuity Act draft annual report

The Committee’s consideration of the tracker developed by Dr Whitten outlined that at least 243 instruments of EU law are potentially within the scope of the Scottish Government’s alignment commitment.

In addition to setting out the scope of the alignment commitment the research also noted the changes in EU law that have taken place since the end of the implementation period at the end of December 2020 when the UK left the EU’s legal order.  The research noted:

“Since the end of the UK Transition Period, at least 559 acts of EU implementing law have been adopted which amend EU regulations, directives or decisions which were previously (fully or partially) within devolved competence in Scotland. 

While amendments made via EU implementing legislation are often very technical and have limited substantive policy impact, sometimes changes are significant for specific sectors and/or stakeholders subject to or affected by the relevant legislation. For this reason, monitoring changes in EU implementing legislation and their relationship to any developments in relevant UK legislation (including in retained EU law versions of a given act) will be an important aspect of any effort to remain aligned with EU law.” 

Changes to EU law which are not subsequently mirrored in Scots Law is often referred to as “passive divergence”. 

The number of changes made to EU law over the last two years is set out in Dr Whitten’s research. With this context, the Constitution Committee considered the Scottish Government’s draft annual report setting out how the “keeping pace” power in the Continuity Act has been used over the previous 12 months along with how Scottish Ministers intend to use the power over the coming 12 months. 

The draft report indicated that for the second year running, the “keeping pace” power had not been used.  However, it also indicated that Scottish Ministers intend to use the “keeping pace” power to amend the Public Water Supplies (Scotland) Regulations 2014. According to the Scottish Government, these amendment regulations will implement certain requirements of Directive (EU) 2020/2184 (“Recast Drinking Water Directive”) on the quality of water intended for human consumption, which replaces Directive 98/83/EC.

Constitution, Europe, External Affairs and Culture Committee consideration of the Scottish Government’s EU alignment policy

The Constitution Committee took evidence from the Cabinet Secretary for the Constitution, External Affairs and Culture on the draft annual report on 17 November 2022 and agreed its response to the Government on 24 November 2022

The Committee considered the Scottish Government’s alignment policy more widely than just a focus on the use of the keeping pace power.  The Committee noted four key concerns in its response to the Scottish Government:

  • A lack of clarity about whether the scope of the Scottish Government’s commitment to EU alignment covers all EU legislative developments including EU tertiary legislation (the equivalent of secondary legislation). 
  • The need for much more clarity regarding the timing of consideration and decision-making with regards to the use of the keeping pace power.
  • A lack of clarity in setting out how the Scottish Government engaged with stakeholders in considering use of the keeping pace power.
  • The need for a reporting mechanism which provides detailed information on actual legislative and non-legislative alignment including the effect of this in comparison with the EU’s legal acquis (the collection of common rights and obligations that constitute the body of EU law). The Committee also suggested more transparency was needed with regards to the Scottish Ministers’ decision-making process on EU alignment, especially where decisions are taken not to align and the reasons for that.

Having considered the research produced by Dr Whitten, the Committee also called for more clarity about the Scottish Government’s commitment to aligning with the EU’s acquis:

“The Committee’s view is that there needs to be much more clarity with regards to the interaction of the commitment to align with the acquis especially with regards to tertiary EU implementing legislation. Given the Scottish Government’s emphasis on retaining EU law, the Committee invites the Cabinet Secretary to clarify whether this also includes a commitment to align with implementing legislation which impacts on Scotland.”


The Scottish Parliament’s scrutiny of the Scottish Government’s commitment to EU alignment will require a continuing knowledge of developments in EU law.  In addition, the Constitution, Europe, External Affairs and Culture Committee, highlighted that more information is required from the Scottish Government both about the scope of its commitment to alignment and about how decisions around alignment are taken.  Leading on from this, the Committee was clear that greater transparency is needed about where alignment takes place and where it does not, to allow both the Scottish Parliament and stakeholders to see the full picture about the extent to which Scots law mirrors EU law.

Iain McIver, SPICe Research