Introduction
On 14 September 2023, the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee published its first EU law tracker report. The report was produced for the Committee by Dr Lisa Claire Whitten from Queen’s University Belfast.
The report is the first of a series of reports commissioned to support the Parliament’s scrutiny of the Scottish Government’s commitment to EU alignment and to provide information on how EU law in areas of devolved competence has evolved following the UK’s departure from the EU.
What’s happened since the UK left the EU?
Since the UK left the EU’s legal order at the end of the transition period in December 2020, EU law has continued to evolve.
The EU tracker highlights the two types of EU legislation which have evolved since the end of the transition period. These are EU secondary law (regulations, directives, decisions, recommendations, and opinions) and EU tertiary law (delegated acts and implementing acts) which is analogous with UK and Scottish secondary legislation.
The Scottish Government’s commitment to align with EU law where appropriate means it is important that the Scottish Parliament is aware of changes to EU secondary and tertiary law.
Changes to tertiary law are numerous in the EU system. For example, the EU tracker report highlights that in 2022, the EU passed 1283 implementing or tertiary acts of EU law. As the Tracker report states:
“Changes brought in via tertiary law acts are general technical or procedural and they are always within the scope of the objectives of the ‘parent’ act of secondary law, nonetheless sometimes EU implementing law changes are substantive in policy terms and, as indicated in the examples included in the EU Law Tracker, many are also relevant to the Scottish Government alignment commitment.”
The EU tracker also highlights other ways in which EU law has changed, these include where regulations, directives or decisions are repealed and replaced at EU level or where completely new EU laws are introduced.
The tracker identifies EU legislative changes in areas which are within the scope of the Scottish Government’s alignment commitment. The tracker concludes that between January 2021 and August 2023, of the 243 EU laws that, pre-Brexit, were either fully or partially in the competence of the Scottish
Government and therefore potentially in scope of the alignment commitment, 34 have been repealed with some though not all of those being replaced. In addition, approximately 832 acts of relevant tertiary EU law have been adopted.
The examples of the different ways in which EU law develops demonstrate the scale of the challenge in continuing to keep up to date with EU law whilst not being part of a Member State.
The Tracker report includes 13 case studies across a range of devolved policy areas which demonstrate how EU law has changed since the end of the transition period. These have been provided to support the Parliament’s subject committees’ scrutiny of the Scottish Government’s alignment commitment in individual policy areas.
Why EU law changes matter?
The Scottish Parliament commissioned the EU law tracker to provide transparency and allow the Parliamentary Committees, stakeholders including business and the public to track relevant developments in EU law. The intention of the tracker is to allow business and civil society in Scotland to continue to be aware of EU legislative developments which may affect them. The tracker will also assist the Parliament in scrutinising the Scottish Government’s commitment to EU alignment.
The evolution of EU law remains of interest in the UK, not least because producers of goods who wish to sell into the EU market need to ensure those goods continue to meet EU standards. In addition, the EU-UK Trade and Cooperation Agreement includes level playing field commitments which means knowledge of the development of EU law after EU-exit continues to be important.
Conclusion
The first EU tracker report concludes that at this stage, just over two and a half years after the UK left the EU’s legal order, Scots law has not diverged much from EU law. The tracker states:
“Most instances of divergence or potential divergence arise from relatively minor changes in EU law via the development of tertiary legislation and/or updates to secondary legislation via repeal and replacement of EU law alongside change adopted in UK and/or Scots Law to reflect the fact that the UK is no longer a Member State of the EU.”
The tracker highlights a small number of cases where the Scottish Government has legislated to align with developments in EU law including one use of the “keeping pace power”.
As a result of the relatively minor changes to EU law, the tracker concludes that “the Scottish Government commitment to align with developments in EU law has largely been upheld” with this being primarily because Scots and EU law were aligned when the UK was a member of the EU.
However, the report also highlights that whilst small changes made to tertiary legislation may each individually have minimal effect on alignment, over time, if these changes are not kept up with in UK and Scots law then there will be increasing divergence with bigger policy impacts in the future.
The Parliament will receive the next EU law tracker report in January 2024.
Iain McIver, SPICe Research and Dr Lisa Claire Whitten, Queen’s University Belfast