Background
The Retained EU Law (Revocation and Reform) Act (‘the Act’) received Royal Assent on 29 June 2023. Previous SPICe blogs explain what retained EU Law is and provide an overview of the Act.
The Act included a list (called ‘Schedule 1’) of retained EU law (‘REUL’) that will be revoked automatically at the end of 2023, meaning that those laws will cease to be in force at the end of the year. Retained EU law that remains on the statute book after that point will be renamed ‘assimilated law’ from 1 January 2024.
However, the Act also gave a power to Ministers to identify individual pieces of REUL in the schedule which could be saved – that is they would remain in force. This preservation power expired on 31 October 2023.
The Scottish Government published a legislative consent memorandum on 8 November 2022, before the then Retained EU Law (Revocation and Reform) Bill was amended to include Schedule 1. See a SPICe blog on this first legislative consent memorandum for more information. After amendments to the bill were tabled during its consideration in the UK Parliament, the Scottish Government then published a supplementary legislative consent memorandum on 24 May 2023. This supplementary legislative memorandum:
- contained a list of 148 pieces of REUL in Schedule 1 considered to contain at least some devolved provisions applicable in Scotland
- set out the Scottish Government’s preliminary position on the inclusion of these pieces of REUL in Schedule 1.
Another SPICe blog provided a summary of the Scottish Government’s position on 1 June 2023. After the bill received Royal Assent on 29 June 2023, the Scottish Government published an updated assessment on REUL containing devolved provisions listed in Schedule 1 on 8 August 2023 and a final analysis on 21 September 2023.
This blog provides a summary of considerations about six pieces of REUL listed in Schedule 1 which have been the focus of discussions in the Scottish Parliament, and between the Scottish Government and UK Government. The six pieces of REUL fall into three policy areas:
- genetically modified organisms
- biocidal products
- air quality.
The blog also covers changes made to REUL listed in Schedule 1 as a result of the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023. These regulations were made on 25th October 2023.
Genetically modified organisms
Genetically modified organisms are plants, animals, or microbes where changes have been made to the genome to alter their characteristics. The Scottish Government’s initial assessment of REUL on Schedule 1 from June 2023 highlighted two pieces of REUL (Decisions 2002/812/EC and Decision 2002/813/EC) relating to genetically modified organisms, which it said were referred to in other legislation and therefore not obsolete. The August 2023 update noted that “Officials continue to consider options to address this” and in its final assessment from September 2023, the Scottish Government stated that it was now content that the decisions “can be revoked at the end of this year without practical issue.“
Biocidal products
Biocidal products, such as disinfectants, wood preservatives and insect repellents, are used to control harmful or unwanted organisms through chemical or biological means. Two pieces of REUL (Decision 2014/85/EU and Decision 2014/395/EU) which regulate certain uses of biocidal products containing copper were identified as containing devolved provision in the Scottish Government’s August 2023 update. In the initial June 2023 assessment, Decision 2014/85/EU had not been identified as containing devolved provision. Decision 2014/395/EU had been identified as containing devolved provision in June 2023 but was classified as obsolete. The August 2023 update stated that “consideration is now being given as to whether there is a case for preserving both of them”.
The Scottish Government’s September 2023 assessment noted that the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 will remove the two pieces of REUL relating to biocidal products containing copper from Schedule 1. The Cabinet Secretary for Transport, Net Zero and Just Transition, Màiri McAllan, wrote to the Net Zero, Energy and Transport Committee on 5 September 2023, informing the Committee that Scottish Ministers’ consent to the preservation of those two pieces of REUL was being sought and that they intended to provide consent. The Committee agreed that it was content for Scottish Ministers to consent on 19 September 2023. It should be noted that while the Scottish Government said the two pieces of REUL on biocidal products were within devolved competence in its August 2023 update and September 2023 assessment, the explanatory memorandum for the regulations, published by the UK Government, stated that the relevant pieces of REUL are “in reserved areas. Nevertheless, the DAs were engaged on the purpose and contents of this instrument.”
Air quality
In its initial assessment in June 2023, the Scottish Government voiced concerns over two pieces of REUL (Decision 2018/1522 and S.I. 2018/129) that relate to air quality. The Scottish Government stated that it was “not persuaded that the provisions of the two instruments can be revoked without greater clarity as to the future of the Air Quality: Revised UK National Air Pollution Control Programme [NAPCP] and assurance that there would be no legislative gaps”. The NAPCP sets out how emission reduction commitments that apply to five pollutants can be met across the UK.
UK Government did not agree Scottish Government’s request for regulations 9 and 10 of the National Emission Ceilings Regulations 2018 to be removed from the revocation schedule within the Act. Officials continue to engage with Defra [UK Government Department for Environment, Food & Rural Affairs] and the other devolved governments to determine whether agreement can be reached on a UK wide replacement for the NAPCP.
The final assessment from September 2023 stated that the Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 will not “unfortunately, preserve the two air quality instruments”. The Statutory Instrument notification for the regulation stated that “Although the provisions fall within devolved competence in relation to air quality, it would not be possible to make a preservation SSI in relation to these provisions as they confer functions on the UK Secretary of State – and not Scottish Ministers – in relation the NAPCP.” The notification also stated that Scottish Government officials “are engaging with their DEFRA counterparts on the proposed replacement [of the NAPCP]”.
The Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 also add an additional 93 pieces of REUL to Schedule 1. The Scottish Government’s notification of the instrument stated that these 93 pieces of REUL are “reserved and/or inapplicable in Scotland.”
In a letter to the Net Zero Committee from 23 November 2023, the Cabinet Secretary for Transport, Net Zero and Just Transition, Màiri McAllan, provided a further update on the air quality regulations:
The Scottish Government had a number of concerns around Defra’s proposed replacement for the NAPCP and I am satisfied that these have now been adequately addressed.
The key concern was a lack of commitment to make any of the procedures or outputs of the new approach available for public scrutiny, unlike the NAPCP which was subject to consultation before being finalised and subsequently published. Defra has acknowledged this concern and proposes issuing a regular public statement on policies and measures under consideration. Defra has also confirmed that the new approach will fully come into effect from April 2024, with an initial launch before the NAPCP provisions are revoked when the Act comes into force on 31 December.
Looking ahead
The automatic revocation of REUL listed in Schedule 1 was only one part of the Retained EU Law (Revocation and Reform) Act and other powers to change REUL (or ‘assimilated law’ as it will be called from 1 January 2024) have been given to Scottish Ministers and UK Ministers. These include powers to restate, revoke, replace, and update REUL/assimilated law. For more information on these powers, see a SPICe overview blog on the Act.
Giving evidence to the Constitution, Europe, External Affairs and Culture Committee on 16 November 2023, the Cabinet Secretary for Constitution, External Affairs and Culture, Angus Robertson, stated that the Scottish Government “has no plans to use REUL act powers to alter policy.”
Annie Bosse, SPICe Research