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In a recent speech at the European Policy Centre in Brussels, First Minister Nicola Sturgeon underlined her commitment to ensuring that policy in Scotland remained closely aligned with EU law. She gave three reasons for doing so: to protect the health and wellbeing of people in Scotland; to maintain the international reputation of businesses in Scotland; and to ‘make it easier, when the time comes, as I believe it will, for Scotland to return to the EU’. The assumption is that, by keeping pace with EU law within the context of devolution, Scotland after independence would be better placed to demonstrate its ongoing conformity to the acquis communautaire, thus easing its accession to the EU.
‘Keeping Pace’ with EU Law
The Scottish government is set to introduce legislation to enable Scotland to keep pace with EU regulatory standards in devolved policy areas. This could see Scots law, for example, in environmental standards, fisheries management, agriculture and food safety, and other devolved areas, continue to conform to standards and requirements set by the EU.
The legislation is expected to reintroduce the ‘keeping pace’ provisions from the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, passed by the Scottish parliament in March 2018 to ensure continuity in Scots law after EU exit. That bill was introduced as an emergency response to the UK Government’s EU withdrawal legislation. The UK bill was regarded by the Scottish and Welsh governments as a ‘power grab’ that undermined devolution. The Scottish continuity bill, like its Welsh counterpart, was at least in part intended to push for changes to the devolution clauses of the UK bill. Arguing that the bill was beyond the legislative competences of the Scottish Parliament, the UK government referred it to the Supreme Court, thus stopping it from securing royal assent. In the Court’s judgment, for the most part, the Scottish continuity bill had been within the competence of the Scottish parliament at the time that it was passed. However, much of it was then rendered beyond competence by the inclusion of the EU (Withdrawal) Act 2018 – the UK parliament’s own continuity legislation – among those that are protected from modification in the Scotland Act 1998.
The parameters of the new ‘keeping pace’ legislation are likely to be similar to those set out in section 13 of the Scottish continuity bill. The policy memorandum that accompanied that bill likened the provisions to section 2 of the now repealed European Communities Act 1972. During the UK’s EU membership, section 2 of the ECA had provided for new EU Treaty rights, obligations and regulatory constraints to either have legal effect automatically, without the need for further UK legislation, or to be given effect through secondary legislation made by ministers. The corresponding provision in the Scottish continuity bill would have given Scottish government ministers power to make regulations to give effect to EU law – EU regulations, decisions and directives – that come into force after ‘exit day’, in order to ensure that devolved Scots law continued to align. These powers extended to any provision that might be made by an Act of the Scottish Parliament (subject to some restrictions). In a letter sent to the Presiding Officer last April, when new ‘keeping pace’ legislation was first mooted, Michael Russell, Constitutional Relations Secretary, noted:
“The extent to which devolved law aligns itself with the law of the EU should be a decision for the Scottish Parliament to take, not the UK government. This government is committed to no regression in standards or protections should EU exit take place, and the replacement of regulatory powers lost in consequence of EU exit will be essential to ensure that.”
These powers were expected to be temporary, up to a maximum of 5 years. Clearly, the SNP government’s ambitions are such that, by then, Scotland would have re-joined the EU, or be in the process of rejoining, after a Yes vote and a transition to independence. However, the plan to use regulatory powers to maintain alignment with EU law in the interim period may face some significant hurdles.
Barriers to Alignment
There are several barriers to maintaining alignment with EU law under devolution. First, provisions similar to those set out within the continuity bill would give extensive law-making powers to Scottish government ministers. Although the continuity bill was widely supported in parliament – only the 32 Conservative MSPs voted against it – a new bill focused principally on these keeping pace provisions, and with more time for legislative scrutiny (the continuity bill took 3 weeks to complete its parliamentary passage), might raise wider concerns. These regulatory powers could significantly enhance the Scottish government’s authority vis-à-vis the Scottish parliament. It would also mean that Scottish ministers would be implementing laws made by the EU institutions over which neither they nor any Scottish parliamentarians had had any say. As Professor Alan Page noted in his submission on the original bill, this could represent ‘a major surrender by the Parliament of its legislative competence’.
Second, if Scots law is to keep pace with legal developments in the EU, the government will have to invest in continued monitoring of EU legislation. The table below suggests that this is no mean task. In 2019, over 2000 regulations, directives and decisions were passed by the EU, two thirds of which were wholly new (basic) Acts, with the remainder amending existing EU law. Even if only a fraction of the EU’s annual legislative outputs matched devolved competence, identifying when and how they do could be a considerable undertaking.
Acts Adopted by the EU in 2019
Acts passed by the ordinary legislative procedure
Other legislative Acts
Delegated Acts (Commission regulations)
Third, although EU law spans both devolved and reserved competences, much of the legal authority in areas corresponding to the EU internal market is reserved to the UK parliament under the devolution settlement. Even if ‘keeping pace’ powers ensure that devolved Scots law continues to conform to the acquis, an independent Scotland would inherit the body of law that the UK parliament had made for Scotland in reserved areas. That retained UK law, as we might come to call it, could have diverged quite significantly from EU law by the time Scotland begins life as an independent state. UK regulatory divergence from the EU would therefore limit the extent to which an independent Scotland seeking accession to the EU could demonstrate that it was already aligned to EU law.
Significant UK regulatory divergence is not inevitable. Obligations to ensure a level playing field are central to the EU’s negotiating mandate in the future relationship negotiations with the UK. For its part, the UK government is adamant that it will ‘not accept nor agree to any obligations where our laws are aligned with the EU or the EU’s institutions, including the Court of Justice’, as succinctly put by Michael Gove, the Chancellor of the Duchy of Lancaster. But regulatory autonomy doesn’t necessarily imply divergence from EU law. The UK government could choose to exercise its sovereignty by mirroring EU law in domestic law. This is the difference between policy ownership and policy divergence. However, despite Boris Johnson’s recent reassurances that ‘We are not leaving the EU to undermine European standards, we will not engage in any kind of dumping whether commercial, or social, or environmental’, the refusal to commit to regulatory alignment has raised regression concerns.
If the UK government does choose to diverge from EU law, this could represent a further barrier to alignment in devolved areas. As the Scottish government seeks to keep pace with EU law, it is likely to face conflicting pressure to remain in alignment with the rest of the UK. At least before the election, officials from the UK’s four administrations had been working cooperatively to develop common UK frameworks where these were felt necessary to replace EU frameworks to avoid new regulatory barriers emerging between the four UK territories. Of the 112 areas of EU law identified by the Cabinet Office as intersecting with Scottish devolved competence, 21 areas were considered to require a common legislative framework. These included potentially contentious areas such as the services directive, emissions trading, agriculture, fisheries, and food safety, where the UK Government may seek to diverge from EU law. Common UK frameworks, especially if underpinned by legislation, could make keeping pace with EU law more challenging. Conversely, the Scottish government’s determination to keep pace with EU law could make it even more difficult to agree UK common frameworks.
The UK government could choose the high stakes route. It could use the controversial ‘freezing’ powers it was given by section 12 of the EU Withdrawal Act to prevent the Scottish government or parliament from making changes to ‘retained EU law’, i.e., the body of EU law that was incorporated into domestic law when the UK left the EU. It could use its parliamentary majority to exploit the sovereignty of the UK parliament to make any law it considers necessary to maintain the UK internal market. Relations between the UK and Scottish governments are already very difficult. If UK legislation were to make changes to the law on devolved matters without the consent of the Scottish parliament, casting aside the Sewel convention, the relationship would surely deteriorate even more.
Alternatively, the UK government could opt for a more emollient approach, allowing divergences to emerge. That could see laws passed for England in areas that fall within devolved competence in Scotland diverge significantly from EU law at the same time as the Scottish government sought to keep pace with EU developments. Under such circumstances, even without independence, maintaining alignment with EU law in Scotland could deepen the regulatory border between England and Scotland. This is unlikely to go down well with those producers who trade more across the Anglo-Scottish border than with the EU, especially in areas where UK regulations are viewed more favourably than EU law.
Asserting the Scottish government’s commitment to remain aligned with EU law, the First Minister declared her belief that doing so was in the best interests of Scotland’s health, wellbeing and economy. Quite clearly, it also serves the symbolic purpose of emphasising Scotland’s continued commitment and sense of belonging to the EU. In practice, though, the combination of political pressure and legal constraints outlined above may render maintaining alignment with EU law more difficult than it at first appears.