The recent UK-EU summit saw commitments to work towards agreements which would involve the United Kingdom dynamically aligning with some EU legislation. To achieve closer cooperation on Sanitary and Phytosanitary (SPS) measures and the linking of the UK and the EU emissions trading schemes the UK agreed to dynamic alignment with the EU rules relevant to each sector. More details about the summit outcomes are provided in a SPICe blog.
What is dynamic alignment?
In the context of the UK-EU relationship, the requirement for dynamic alignment is being placed on the UK by the EU due to the EU being the bigger partner with the larger available market (size matters in trade negotiations). The European Union’s rationale is that if the UK wants to have better access to the EU Single Market for its animal and food products then it must observe “all the relevant European Union rules”. Similarly, if the UK wants to link its ETS scheme to the EU’s then it must ensure alignment “with the relevant European Union rules underpinning the functioning of the ETS link”.
The Centre for European Reform has highlighted why this form of alignment is termed dynamic citing the EU’s current arrangements with Switzerland as the catalyst:
“Such alignment is termed dynamic to distinguish it from a system like the Swiss-EU bilateral agreements which are static in nature. Under the Swiss-EU bilateral agreements, the adoption of each new EU directive by Switzerland has to be negotiated. The arrangement has proved so cumbersome in practice that both parties have agreed to switch to dynamic alignment in the ongoing negotiations for a new Swiss-EU framework agreement.”
Who else dynamically aligns with the EU?
Perhaps the best example of where dynamic alignment with EU law already takes place is the European Economic Area countries – Norway, Iceland and Liechtenstein – which extends the EU Single Market, and therefore its rules, to these three countries. Instead of EU laws being directly applicable in the EEA countries, the laws are adopted as part of the EEA statute book and then are transposed into each country’s law.
A key consideration in relation to dynamic alignment is that a country (in this case the UK) is required to follow the laws of the EU whilst having no direct say in the legislative process. It has been proposed that the European Commission will consult the United Kingdom at an early stage of policy-making for laws in relevant areas for both an SPS and an ETS agreement. However, the UK-EU agreement (known as the Common Understanding) adds that:
“These rights would not extend to [the UK’s] participation in the work of the Council or its preparatory bodies”.
In terms of participation in decision making process, this is a less advantageous approach than the EEA countries enjoy as the Centre for European Reform has set out:
“EEA countries participate in technical meetings that prepare new regulation, where if new rules are deemed relevant for the EEA, there is a process in place for EEA countries to give comments, assess the impact of legislation, and engage in dialogue with the EU about how to adopt the regulation into EEA law.”
How the UK seeks to achieve alignment with EU law and what will be acceptable to the EU will form part of the negotiations to come.
What is the possible scale of alignment?
To demonstrate the potential scale of alignment that might be necessary, this blog sets out the areas of EU law which underpin SPS rules and with which the UK would need to align.
As a starting point, relevant EU legislation which has been passed since the UK left will have to be incorporated into UK law (where continued alignment has not already been ensured). In addition, all further future changes will need to be transposed on a case-by-case basis. From a parliamentary procedure and scrutiny perspective this could involve engaging with a large volume of legislation.
An example of the possible scale of the dynamic alignment commitment is provided by the scope of the Northern Ireland Protocol which applies to Northern Ireland. Annex 2 to the Protocol provides a list of EU law instruments which apply in Northern Ireland. Of the 47 subheadings, around 20 policy areas could potentially come within the scope of an SPS agreement. These areas along with the number of legislative acts (such as directives and regulations) applicable under each heading is shown in the table below.
Area of EU law | Number of applicable provisions of EU law such as directives and regulations |
Chemicals and related | 12 |
Pesticides, biocides | 3 |
Waste | 4 |
Food General | 3 |
Food Hygiene | 3 |
Food – ingredients, traces, residues, marketing standards | 23 |
Food contact material | 2 |
Food – other | 8 |
Feed – products and hygiene | 5 |
GMOs | 4 |
Live animals, germinal products and products of animal origin | 15 |
Animal disease control, zoonosis control | 13 |
Animal identification | 3 |
Animal breeding | 1 |
Animal welfare | 2 |
Plant Health | 2 |
Plant reproductive material | 9 |
Official controls, veterinary checks | 7 |
Sanitary and phytosanitary – Other | 2 |
Fisheries and aquaculture | 12 |
This is provided for illustrative purposes as the scope of an SPS agreement between the EU and the UK is still to be negotiated. However, were an SPS agreement to follow similar lines as the animal and plant health provisions included within the scope of the Northern Ireland Protocol/Windsor Framework it could apply to about 20 areas of EU law which include 133 legislative acts. It is also important to consider that not all EU Acts will necessarily relate to areas of devolved competence.
What might this mean from a legislative perspective?
As the Parliament’s Constitution, Europe, External Affairs and Culture Committee’s scrutiny of the Scottish Government’s EU alignment commitment has shown, when considering volume of legislation, the issue to focus on isn’t necessarily the EU legislative Acts but the tertiary legislation (essentially European subordinate legislation) which is used to update the EU Acts. The EU law tracker prepared by Dr Lisa Whitten from Queen’s University Belfast for the Scottish Parliament provides details of the EU acquis (the legal framework) broken down by policy area and where it intersects with devolved competences. The tracker also shows the number of pieces of EU tertiary legislation which have been introduced since 2021 to amend EU Directives and Regulations. The table below provides the relevant information for EU legislation which contributes towards the EU’s SPS framework.
Policy Area | EU Acts in scope | Related tertiary acts since 1 January 2021 |
Animal Health and Welfare | 26 Directives and Regulations | 660 implementing and delegated acts |
Plant Health | 17 Directives and Regulations | 377 implementing and delegated acts |
Food Standards | 31 Directives and Regulations | 195 implementing and delegated acts |
As demonstrated in the table above, several hundred pieces of EU tertiary legislation each year may need to be transposed into UK law to ensure ongoing compliance with the EU’s SPS framework[1]. If as is likely this is done through secondary legislation in the UK and/or Scottish Parliament, it will fall on the legislatures to scrutinise the passage of the required secondary legislation.
Why is the UK Product Regulation and Metrology Bill a possible model?
The UK Government’s Product Regulation and Metrology Bill includes a proposal to confer a power on UK Ministers to make regulations to:
“make provision, in relation to the marketing or use of products in the United Kingdom, which corresponds, or is similar, to a provision of relevant EU law for the purpose of reducing or mitigating the environmental impact of products.”
This power would allow UK Ministers to continue to recognise EU product law regulation, and/or to align with EU rules across the United Kingdom, where this is in the interests of the United Kingdom.
When the UK Government secures SPS and ETS agreements with the EU, it may be that these will be legislated for using primary legislation, with powers conferred on UK (and possibly Scottish) Ministers to make regulations (statutory instruments) to ensure ongoing alignment with EU law. These regulations will focus on aligning with new EU acts and tertiary legislation used to make changes to EU acts.
What might an SPS agreement mean for UK legislatures?
As demonstrated in the table above, several hundred pieces of EU tertiary legislation each year may need to be transposed into UK law to ensure ongoing compliance with the EU’s SPS framework. If this is done through secondary legislation in the UK and/or Scottish Parliament, it will fall on the legislatures to scrutinise the passage of the required secondary legislation.
If the UK Government decides to ensure alignment by legislating in areas of devolved competence, it is possible the Scottish Parliament would not have a formal role in scrutinising UK legislation in areas of devolved competence.
As a result, where agreements are reached with the EU which require the UK to dynamically align with EU law, Scottish Parliament Members and Committees may wish to consider what role the Parliament will have in the ongoing scrutiny of the legislation needed to ensure dynamic alignment with EU law.
Iain McIver, SPICe Research
[1] Depending on the nature of the agreement reached between the UK and EU, not all of this tertiary legislation will necessarily afford the UK any discretion about how or when to implement it.