Assimilated law is EU law that was preserved in domestic law as it was at the end of the transition period following the UK’s exit from the EU (i.e. at the end of December 2020).
An accompanying blog looks at the overall picture for assimilated law as it stood in Scotland at the start of 2025. This blog picks up where that one left off, and considers how assimilated law reform may overlap with the Scottish Government’s policy to remain aligned with EU law where possible.
Does reform mean divergence?
Since the UK left the EU, there is no longer a requirement for Scotland and the wider UK to continue to comply with EU law. As such, it is open to the UK Government and (within legislative competence) the Scottish Government to change EU-derived domestic laws, or to revoke them entirely, should they wish to do so.
Repealing, amending or replacing assimilated law in this way could represent a deliberate choice to increase regulatory divergence between the EU and the relevant part(s) of the UK, which could be pursued for a variety of reasons. Notably, as the think tank UK in a Changing Europe has observed, while the previous UK Government was pursuing its “Brexit opportunities” agenda, its approach to retained/assimilated EU law reform focused on the possibility of taking a different – often more deregulatory – approach in specific policy areas to that set out in EU law.
However, it is important not to equate all potential assimilated law reform with regulatory divergence. Indeed, ongoing alignment with the EU cannot be achieved without reforms to assimilated law. As Dr Lisa Clare Whitten of Queen’s University Belfast has written:
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 […] 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. In the absence of active pursuit of alignment on the part of the Scottish Government […] the default impact will be Scotland-EU divergence even if the relevant EU law act applies as retained EU law in Scotland.
Dr Whitten has been commissioned by the Scottish Parliament’s Constitution, Europe, External Affairs and Culture (CEEAC) Committee to produce a series of research reports setting out developments in EU law within the scope of the Scottish Government’s alignment policy. Further detail on this work is set out in SPICe blogs from December 2022 and September 2023.
What does this mean for Scottish Government policy?
The Scottish Government’s policy is that Scotland should remain “aligned with EU law where it is possible and meaningful to do so”. SPICe has published a number of resources examining this policy, including this October 2021 briefing and December 2022 blog. The Scottish Government provides the Parliament with an annual report on this policy, including its use of the “keeping pace” power from the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.
In its latest update on the Retained EU Law (Revocation and Reform) Act 2023 (“the REUL Act”), provided to the CEEAC Committee in February 2025, the Scottish Government described its alignment policy as its “guiding star” in relation to its planned future treatment of devolved assimilated law.
However, as Dr Whitten’s reports emphasise, achieving alignment on an ongoing basis will require proactive changes to assimilated law – not simply keeping it in its original form. Dr Whitten’s latest report, published in February 2025, found an increasing number of examples of “actual and/or new potential instances of divergence […] as a result of legislative changes in both the EU and UK” – and highlighted that:
Across a range of policy areas there is potential for divergence by default if Scotland does not (continue to) actively pursue the same policy objectives as the EU in areas within its devolved competence.
One way in which the Scottish Government could achieve this would be for Scottish Ministers to identify prospective reforms to assimilated law needed to keep up with changes to EU law since Brexit, and enact these either in primary legislation or Scottish Statutory Instruments (using their powers under the REUL Act and Acts of the Scottish Parliament).
However, the REUL Act and other post-Brexit UK legislation has empowered not only Scottish but also UK Ministers to reform assimilated law in devolved areas via secondary legislation. If – as has been suggested, for example by the House of Commons Library – the UK Government is more willing than its predecessor to prioritise alignment (with EU law) over divergence when reforming assimilated law – and if Scottish Ministers are willing to consent to UK Ministers making these reforms in devolved areas – then this could contribute to the Scottish Government’s alignment ambitions.
What is the UK Government’s position on EU alignment?
According to the think tank UK in a Changing Europe, “there is as yet no sign of a clear [UK Government] strategy around alignment or divergence”. However, its research has found what it describes as “a marked policy shift […] from divergence towards alignment with EU rules” since the new UK Government took office – including aligning with EU rules that have been updated since Brexit to avoid new cases of “passive” divergence.
Particular attention has been paid to the UK Government’s Product Regulation and Metrology Bill in relation to its position on EU regulatory alignment. For example, Jill Rutter from the Institute for Government has said that the Bill would “allow the [UK] Government to align sotto voce [quietly] with a swathe of EU rules through delegated legislation where it thinks it is in the UK interests”.
The Bill has completed its consideration in the House of Lords and earlier this month had its Second Reading in the House of Commons. SPICe has previously published a blog considering the relationship between the Bill and the potential to align with EU law, as well as one focused on its implications for devolution and the UK internal market.
According to the House of Commons Library, the powers in the Bill:
would allow the UK to keep pace with changes made to EU product regulations, including those which continue to apply in Northern Ireland as part of the Brexit settlement. This might suggest a change in approach, with the current government being more willing to align with EU rules where this would reduce divergence and regulatory friction within the UK’s internal market. The existing powers in the REUL Act are less “alignment-friendly” because they cannot be used to amend assimilated law in ways that increase the overall regulatory burden.
In summary then, while the UK Government has not committed to wholesale alignment with EU rules, its actions to date suggest it is more open to alignment in a wider range of policy areas than the previous UK administration. And while it may be able to use its existing REUL Act powers to reform assimilated law to achieve this in some cases, the powers in the Product Regulation and Metrology Bill – if passed – would further enhance its ability to do so, including in devolved policy areas.
Implications for Scottish Parliament scrutiny of assimilated law reform
The seemingly closer position between the two Governments on the question of EU alignment, together with the UK Government’s stated commitment to a ‘reset’ of intergovernmental relations, may increase the scope for intergovernmental working and agreement on future assimilated law reform in devolved areas – and for that reform to be enacted via UK, rather than Scottish, legislation.
This is important because, unlike Scottish Statutory Instruments (SSIs) made by Scottish Ministers, the Scottish Parliament has no formal role in scrutinising secondary legislation laid at Westminster. If changes to devolved assimilated law are made by UK Statutory Instruments (UKSIs) to which Scottish Ministers have given their consent, the Scottish Parliament will receive a notification of Scottish Ministers’ decision, but it will not be able to approve, scrutinise or annul the new regulations.
The CEEAC Committee has raised concerns about UK Ministers’ increasing regulation-making powers in devolved policy areas and how this affects the Scottish Parliament’s ability to scrutinise devolved law. The Committee’s October 2023 report ‘How Devolution is Changing Post EU’ concluded that there was:
a significant risk that laws made at a UK level in devolved areas will lessen the accountability of the Scottish Ministers to the Scottish Parliament and the opportunities for the public and stakeholders to engage at a devolved level.
In its February 2025 update on the REUL Act, the Scottish Government said that it “remains of the view” that devolved assimilated law reform is “best progressed through the ordinary Scottish Parliament legislative processes”. However, it also argued that:
UK Parliament legislative vehicles may from time to time be acceptable, and compatible with the alignment policy, in particular instances where proposals are consented to by the Scottish Government and the Scottish Parliament has due time for policy consideration and scrutiny.
It is therefore unclear at this time whether the Scottish Government will make future changes to devolved assimilated law by SSI, or whether Scottish Ministers will consent to UKSIs. However, it should be recognised that the choice between these two approaches has consequences for the Parliament. In the words of Dr Chris McCorkindale, adviser to the CEEAC Committee:
The legislative and scrutiny functions of the Scottish Parliament in devolved areas are constitutional goods in and of themselves. The risk of too ready a pragmatic recourse to UK powers with the consent of Scottish Ministers is that the role of the Scottish Parliament in devolved areas is hollowed out from within.
Duncan Sim, SPICe Research