As a SPICe blog last week on ‘The continuing challenge of scrutinising alignment with EU law’ outlined, the Constitution, Europe, External Affairs and Culture Committee recently commissioned research into the implications of the Scottish Government’s policy commitment to stay aligned with EU law and policy where appropriate. Building on this, what follows is a high-level overview of the research project and its key findings.
As with all guest blogs, what follows are the views of the author and not those of SPICe or indeed the Scottish Parliament.
Research purpose and context
To maintain legal alignment between two entities, one must be able to track legislative developments in each. On this premise, the overarching aim of the research for the Constitution, Europe, External Affairs and Culture Committee was to set a baseline from which to monitor the extent of continuity of Scottish Government policy and law with areas of EU policy and law that are, at least potentially, within the scope of its policy commitment to align the two.
While there are several legislative paths by which Scotland could give effect to its alignment commitment, this research focused on the novel and specific provision set out in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (the Continuity Act) under which Scottish Ministers can make regulations that ‘correspond’ to any EU law or policy which ‘has effect in EU law after’ the end of the UK Transition Period. This power is conferred on Scottish Ministers by Section1(1) of the Continuity Act.
Powers granted to Scottish Ministers under the Continuity Act are discretionary. A small number of restrictions to the use of these ‘keeping pace’ powers apply and are set out in Section 3 of the Continuity Act, and they are time limited (to 2026, or 2030 if extended). Otherwise, however, the powers to make regulations to achieve alignment with EU law in Scotland are broad and subject to Ministerial discretion.
In short, under the Continuity Act, any EU law that exists after 1 January 2021, and is within devolved competence in Scotland, potentially falls in the scope of the Continuity Act ‘keeping pace’ powers. Monitoring the extent of continuity and the exercise of alignment powers in Scotland is, therefore, somewhat of a challenge – but not an impossible one.
Mapping the scope of alignment
To begin mapping what ‘keeping pace’ – and scrutiny of it – may involve, we first need to know how devolved competence and EU competence intersected in Scotland when the UK was an EU Member State. Happily, for the purpose of this research, the UK government carried out some of this work during the Common Frameworks initiative, which identified 101 areas of policy where EU law and Scottish responsibilities overlapped. The Frameworks Analysis (2021) document produced during the Common Framework process provided a good starting point from which to map the possible scope of alignment to EU law in Scotland.
Table 1: Summary of the Potential Legislative Scope of the ‘Keeping Pace’ Power in EU Law Terms.
Policy Area | EU Instruments* | Mixed competence | Devolved competence |
Environmental Protection | 42 | 24 | 18 |
Animal Health and Welfare | 46 | 10 | 36 |
Plant Health | 17 | 3 | 14 |
Equality, Non-Discrimination, and Human Rights | 7 | 1 | 6 |
Social Protection | 4 | 4 | 0 |
Food Standards | 30 | 27 | 3 |
Chemicals | 7 | 4 | 3 |
Economy & Trade | 6 | 5 | 1 |
Police & Judicial Cooperation | 57 | 27 | 30 |
Public Health | 15 | 3 | 12 |
Transport | 12 | 7 | 5 |
Total | 243* | 115 | 128 |
*As of 31 December 2020. Changes up to 31October 2022 are detailed in the research report.
A cross reading of EU law instruments and devolved competence in Scotland prior to UK withdrawal comes up with 243 of the former. Of these, there are 115 EU law instruments where the competence is ‘mixed’ between the UK government and devolved government in Scotland and 128 that are fully the responsibility of the Scottish Government.
As indicated in Table 1, the 243 relevant EU instruments cover environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights and social protection – notably, these are the policy areas listed in section 2 of the Continuity Act for which Scottish Ministers are to have ‘due regard’ when exercising the ‘keeping pace’ powers. Alongside these, EU laws related to food standards, chemicals, economy and trade, police and judicial cooperation, public health, and transport, are all also potentially within the scope of the Scottish Government’s alignment commitment.
Divergence by default
From a legislative perspective, the ‘default setting’ in the post-Brexit era is divergence between the EU and the UK, including in respect of Scotland (the particular position of Northern Ireland under the Protocol on Ireland / Northern Ireland is not covered in this blog but analysis on the unique dynamic alignment arrangement established under the Protocol is available). This is because neither UK nor EU legislation is ever static, both are constantly evolving, and as a result of UK withdrawal from the EU, they now do so separately.
On the EU side, changes in legislation generally occur at two levels – secondary EU law and tertiary EU law. The language here can get confusing. Broadly, ‘secondary law’ acts in the EU equate to ‘primary law’ acts in Scotland, while EU ‘tertiary law’ equates, in general, to ‘secondary law’ in Scotland.
When we look at the first, 32 acts of secondary EU law that were fully or partially within Scottish competence while the UK was a Member State have been repealed in the EU since the end of the UK transition period (correct as at the end of October 2022). This may sound like a lot but, it is also true to say that the divergence impact of those 32 repeals has not been as significant as one might imagine because these changes were all agreed and adopted in EU legislation that was passed during the UK’s membership. EU acts often include lengthy transition periods to allow different member states to arrange for their implementation. This fact, together with the ‘copy and paste’ effect of retained EU law is why divergence impacts from secondary EU law changes have not been very visible despite the repeal of 32 relevant EU acts.
On tertiary EU law, in the same way that Scottish statutory instruments are often used to make detailed provisions for the application of Scottish primary law acts, EU tertiary law acts are frequently passed to make minor amendments or provisions relating to the application or implementation of secondary EU law acts. This matters for alignment because changes at EU tertiary (or implementing) law level do not automatically apply in Scotland even if the relevant secondary instruments of EU law are still applicable in a retained EU law form. Although, under the EU Withdrawal Act 2018, any EU legislation that was adopted prior to 11pm on 31 December 2020 became retained EU law at that point, it did so in a ‘frozen’ form from the perspective of EU legislative procedures.
What this means is that any EU legislative developments that have happened since the end of the UK Transition Period in those specific acts that were (fully or partially) within devolved competence in Scotland would not have automatically taken effect in their (Scottish) retained EU law ‘frozen’ version. Therefore, in the absence of any active pursuit of alignment, on the part of the Scottish Government, with changes taking place in the EU through its ordinary legislative procedures (either in secondary or tertiary EU law) the default impact will be Scotland-EU divergence even if the relevant EU law act applies as retained EU law in Scotland.
Cases and conclusions
The research report uses several examples to further explain and demonstrate the new post-Brexit dynamics of (potential) divergence and (potential) alignment between EU law and Scots law. As set out in detail in the report, so far, instances of divergence have been minimal and are mostly technical or procedural in nature.
Notwithstanding limited divergence to date, as time progresses, and legislation in the UK and in the EU continues to evolve separately, the policy implications of such divergent development can be expected to become more visible and significant.
It ought to be emphasised that the findings of this research do not call into question the possibility or capacity for Scotland to ‘keep pace’ with EU law and policy where appropriate; they do, however, underline the potential scope of the task involved in doing so.
Monitoring the dual development of the two legal orders and policy priorities of the EU and the UK will be essential if the Scottish Government’s ‘keeping pace’ commitment is to be upheld. Given this, the development of the Scottish Parliaments EU law tracker that follows from this research is to be welcomed.
Lisa Claire Whitten, Queen’s University Belfast