Constitution, Europe, External Affairs and Culture Committee
UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021: Draft Policy Statement and Draft Annual Report
Letter from Convener to Cabinet Secretary for Constitution, External Affairs and Culture, 25 November 2021
Dear Cabinet Secretary
UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021: Draft Policy Statement and Draft Annual Report
Thank you for your oral evidence on the draft policy statement and the draft annual report which the Scottish Government is required to lay before Parliament by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.
The Committee’s views are set out in Annexe A to this letter and we look forward to you setting out how you have had regard to these when laying the policy statement and the annual report in Parliament.
The constitutional implications of being part of the EU for devolved policy-making and legislation were clear. In contrast, the constitutional implications of leaving the EU for devolved policy-making and legislation are highly complex and raises a number of challenges in ensuring transparency and Ministerial accountability which we consider in the attached report.
The Committee notes that the Scottish Parliament and the Scottish Government have yet to agree parliamentary procedures which will be sufficiently robust to address these challenges and recommends that proposals are developed as a matter of urgency by our respective officials.
This letter has also been copied to Subject Committee Conveners.
Yours sincerely,
Clare Adamson, Convener of the Constitution, Europe, External Affairs and Culture Committee
Annexe A
Introduction
1. The Committee’s views on the draft policy statement and the draft annual report which the Scottish Government is required to lay before Parliament by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 are set out below.
2. The Committee thanks those who provided written and oral evidence within the 28 day period allowed within the provisions of the Act. The Committee also received helpful briefings from both SPICe and our Advisers.
Background
3. As noted by our Adviser, Dr Chris McCorkindale, there are two significant differences between the commitment to align with EU law and the previous legal obligation to comply with EU law –
- alignment with EU law was previously a legal requirement on the part of the Scottish Ministers, and so recourse to section 2(2) ECA carried its own justification. This is no longer the case. Alignment is now a policy choice on the part of the Scottish Ministers, which requires more by way of justification;
- alignment with EU law affords a broad discretion to the Scottish Ministers to set, among other things, entirely new policy objectives derived from the EU and into which neither the UK nor Scotland have had direct input (most obviously through the implementation of directives (Continuity Act section 1(a)(iii)).
4. These significant differences were also highlighted by the Session 5 Finance and Constitution Committee in its Stage 1 report on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. Given these differences that Committee did not accept that the use of the keeping pace power “should be entirely at the discretion of the Scottish Government” .
5. The Scottish Government also stated in the Bill’s policy memorandum that “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.”
EU Policy and Legislative Development Process
6. While the UK was a Member State of the EU the Scottish Government had a formal role in the EU policy-making and legislative development process. The Scottish Government routinely sought to represent Scottish interests and influence EU policy-making both formally at UK level and informally at an EU level. The Scottish Parliament and its committees also had a formal role in the process but little capacity to influence policy at an EU level.
7. Now that the UK is no longer a Member State of the EU, the Scottish Government and Scottish Parliament no longer has a role in influencing the future development of EU law. This means that there is no opportunity for democratic engagement from Scotland in the EU policy-making and legislative development process. This is shown in Table 1 below.
Table 1: The EU policy-making and legislative development process
| AS PART OF AN EU MEMBER STATE | AS PART OF AN EU MEMBER STATE | AS A THIRD COUNTRY | AS A THIRD COUNTRY | |
| Role of Scottish Government | Role of the Scottish Parliament | Role of the Scottish Government | Role of the Scottish Parliament | |
| The EU policy-making and legislative development process | Contributed to the production of UK Government Explanatory Memorandums (EMs) on all EU documents. Formal role in influencing EU policy-making at UK level and informal role at an EU level. |
The Explanatory Memorandums were also forwarded to the Scottish Parliament (“the sift”). Scrutiny role in relation to the role of the Scottish Government in influencing EU-policy-making. |
There is no formal role for a third country to influence the development of policy and legislation at EU level. | There is no formal role for the Scottish Parliament in the development of policy and legislation at EU level. |
8. Our Adviser, Professor Katy Hayward, highlights a “democratic deficit” arising from “the lack of Scottish involvement in shaping or making the EU legislation to begin with, and with regards to the use of secondary legislation to implement it in Scotland.” She also points out that the “decision to align with EU laws without having been able to shape them or and without being able to make a case for particular consideration when it comes to their implementation will bring practical difficulties.”
9. Professor Hayward highlights, for example, challenges in implementing obligations under the Ireland/Northern Ireland Protocol. She points out that “there are gaps with respect to information that Northern Ireland needs from the EU directly that can have direct implications for the application of EU law.”
10. The Committee also received evidence which highlighted the challenges which civic society in Scotland face in no longer being formally involved in EU policy networks. In their written evidence Human Rights Consortium Scotland (HRCS) highlighted a report by ten Scottish civic society organisations on the impact of the UK leaving the EU. The report states that many voluntary sector organisations gained considerable benefit from being part of EU or European networks. Where networks are specifically EU-related the HRCS point out that some of these have “positively welcomed continuing engagement from UK organisations in some way. However, this is not certain for all networks.”
EU Legislation
11. While the UK was a Member State of the EU there was a legal obligation to comply with EU law. EU law applied in devolved areas either directly – by virtue of section 2(1) of the European Communities Act 1972 (coupled with the restriction of the powers of the Scottish Parliament in section 29(2)(d) of the Scotland Act 1998) – or failing direct applicability (or direct effect) needed to be transposed into domestic law.
12. There were four principal ways in which EU obligations could be transposed in devolved areas –
- A specific Act of the UK Parliament;
- subordinate legislation made by UK Ministers under section 2(2) of the European Communities Act 1972 (read with section 57(1) of the Scotland Act 1998);
- A specific Act of the Scottish Parliament;
- subordinate legislation made by the Scottish Ministers under section 2(2) of the European Communities Act 1972.
13. There were no legal rules governing the choice between UK-wide transposition and separate Scottish transposition. In practice, some EU obligations which affect devolved areas were transposed by Scottish legislation; others were transposed by UK legislation.
14. The draft policy statement states that recourse to the keeping pace power would be in keeping with recourse, pre-EU withdrawal, to the regulation-making power in section 2(2) of the European Communities Act 1972 (ECA). But as noted at paragraph 3 above there are two important contextual differences between section 2(2) of the ECA and section 1(1) of the Continuity Act.
15. The role of the Scottish Government and the Scottish Parliament in implementing EU legislation as part of a Member State and aligning with EU legislation as a third country is shown in Table 2 below.
Table 2: EU Legislation
| AS PART OF AN EU MEMBER STATE | AS PART OF AN EU MEMBER STATE | AS A THIRD COUNTRY | AS A THIRD COUNTRY | |
| Role of Scottish Government | Role of the Scottish Parliament | Role of the Scottish Government | Role of the Scottish Parliament | |
| The EU policy-making and legislative development process | Legal obligation to comply with EU law either directly through section 2(1) of the European Communities Act 1972 or indirectly through primary or subordinate legislation under section 2(2) of the European Communities Act 1972 or through UK Government subordinate legislation made by UK Ministers under section 2(2) (read with section 57(1) of the Scotland Act 1998). |
Scrutiny of primary and subordinate legislation. The Policy Notes accompanying SSIs indicated where an SSI had been made using the powers conferred by Section 2(2) of the European Communities Act and set out the EU legislation the SSI was transposing. |
Default position is to continue to align with EU law “in a range of different ways, legislative and non-legislative” but no legal obligation. Keeping pace power “as a backstop, providing flexibility so that the most appropriate legislative vehicle can be used depending on specific circumstances.” The Trade and Cooperation Agreement (TCA) does not require the UK to maintain regulatory alignment with the EU but there are incentives to do so including a non-regression provision. The UK Internal Market Act may limit the scope for regulatory divergence within the UK. |
Proposals to be developed by Scottish Parliament and Scottish Government officials for consideration in the first instance by the CEEAC Committee and the Cabinet Secretary. |
16. There are also constraints on the extent of the discretion to Scottish Ministers to align with EU law. The draft policy statement states that there will be occasions where alignment would not serve Scotland’s wider interests due to “the constraints under which Scottish Ministers currently operate, in particular as a result of the working of the UK Internal Market Act.”
17. Our Adviser, Professor Michael Keating points out that the exercise of the keeping pace power will be affected by how much divergence there is between the UK and the EU. In his view, the “closer the UK cleaves to European norms, the less problem there will be for Scotland in maintaining alignment.” While the TCA does not require the UK to maintain regulatory alignment with the EU but there are incentives to do so including a non-regression provision so that, if UK regulations are lowered, the EU is permitted to suspend part of the agreement or take retaliatory action.
18. Dr McCorkindale suggests that given the important differences between implementing EU obligations and choosing to align with EU law “there are good reasons of constitutional principle (transparency, democratic legitimacy and responsiveness, accountability)” which support “the establishment of a robust framework, focused on early policy engagement with the Scottish Parliament.” This “should be a priority during the current reporting period.”
19. The Committee’s view is that scrutiny of the draft policy statement and the draft annual report needs to take account of the significant differences between a legal obligation to comply with EU law and a policy choice to align with EU law. In particular, the Committee notes that there is no formal UK or Scottish Government involvement in policy development at an EU level. This means it is essential that the Scottish Parliament and civic society can have meaningful engagement and influence in the Scottish Government’s decision-making process to align with EU law at a domestic level.
20. The Committee notes that this issue was widely discussed throughout the passage of UK Withdrawal from the European Union (Continuity) (Scotland) Bill in Session 5 and the Scottish Government committed to working with the Parliament to agree a decision-making framework. We consider this in more detail below.
Transparency and Ministerial Accountability
21. The key issue raised in the evidence and briefing material the Committee received is the need for increased transparency and Ministerial accountability in relation to
- The narrow scope of the draft policy statement and the draft annual report;
- The Scottish Government’s policy commitment to align with EU law.
The narrow scope of the draft policy statement and draft annual report
22. The Scottish Government’s Programme for Government states that “with a view to re-joining the EU as soon as we are able to, we will preserve Scotland ‘s good relations with the EU and implement our commitment to align with EU standards and laws.”
23. The draft policy statement states that maintaining alignment with EU law is a priority of the Scottish Ministers and this will be achieved in a range of different ways, legislative and non-legislative. It also states that the intention however is that “this commitment is implemented primarily through the existing policy development process.”
24. The draft policy statement notes that that the keeping pace power “is intended for circumstances in which secondary legislation is the most appropriate vehicle for maintaining alignment and specific powers are not available, or not appropriate, to give effect to the policy intention of the measure proposed.” On this basis it “therefore acts as a backstop, providing flexibility so that the most appropriate legislative vehicle can be used depending on specific circumstances.”
25. The draft annual report notes that the “power has not been used over the reporting period” and “Ministers have no current plans to use the power under section 1(1) of the Act, however use of the power may be considered within the upcoming reporting period as necessary.”
26. The Cabinet Secretary states in writing to the Committee that although the keeping power has not yet been used it is “critical in maintaining the Scottish Government’s ability to make subordinate legislation where appropriate, in order to ensure we can keep devolved Scots law aligned with EU law as it develops.”
27. The Committee notes, however, that the Scottish Government’s consultation document on Scottish Building Regulations – Proposed Changes to Energy Standards and associated topics which was published in July 2021 states that “we plan to introduce requirements in the car parks of certain non-residential buildings where no construction work is planned through powers available in the UK Withdrawal from the EU (Continuity) (Scotland) Act 2021.”
28. The Cabinet Secretary also told us that the recast EU Drinking Water Directive is an “area in which we are considering using the powers” and provided us with a number of examples where decisions on alignment with EU law have been made. However, there is no reference to any consideration of the use of the power in either the draft policy statement or draft annual report. It is not clear why.
29. Professor Armstrong told us that the draft policy statement and draft annual report are “narrowly focused on a particular use of a particular power in respect of alignment” but “the landscape of alignment is much broader than that” and “can happen in all sorts of ways” including case law, soft law and policy guidance.
30. Our Adviser Dr McCorkindale, states that there is a “significant transparency and accountability gap” in relation to the Scottish Government’s default position of aligning with EU law. He suggests the need for the Scottish Government to clarify whether –
- non-use and current absence of any intended use of the keeping pace power during the reporting period signals a decision (or a series of decisions in specific devolved policy areas) not to align with EU law and if so, why;
- there has been a decision to align with EU law (or a series of decisions to align in specific areas) using specific domestic powers or primary legislation (and if so, via which legislative vehicles, chosen on what principled bases) or
- there have been no (and are currently no foreseen) developments in EU law that engage the question of domestic alignment.
31. Specifically there is no consideration within either draft document of legislative activity within the EU during the reporting period . But as highlighted by Professor Lock there “are numerous pieces of EU legislation in relation to which the section 1 power could potentially have been used, but ostensibly was not.” This results in a lack of transparency over the reasons why the power was not used in each individual case.
32. HRCS told us that civil society organisations are “really struggling” to follow what is happening in the EU and therefore it is more important than ever that at the Scottish Government is clear and public in its decision making so that it can be held to account for doing what it has said that it will do.
33. HRCS would like to see more clarity in the draft documents including in relation to –
- the lack of consideration of the use of these powers (is this because of the clear decision to use another legislative vehicle, or there has been simply no discussion or work done about whether to use the powers in any way);
- what monitoring of EU law and policy has been carried out by the Scottish Government;
- has there been any identified areas where EU alignment would be beneficial for maintaining and advancing rights and standards in Scotland;
- the definition of ‘no consideration’ of the use of these powers would be valuable.
34. The Law Society of Scotland (LSS) highlight the lack of information in relation to –
- Whether powers other than the keeping pace power have been used to align with EU law;
- Areas of EU law where Scottish Ministers have decided not to keep pace;
- What assessment Scottish Ministers have made of EU law in 2020/21 to see what, within devolved competence, should be reflected in Scots law, in accordance with their “keeping pace” policy;
- the reasons for not having exercised their power in the reporting period and for having no plans to do so in the upcoming reporting period;
- detail on things being discussed (and possible issues on the devolved/reserved boundary). For example, the forthcoming EU ban on lead shot (agreed in late 2020), to be implemented through REACH. Is Scotland going to align with this?
35. Scottish Environment LINK state in their written evidence that the current draft “is light on detail that would make the process clear to stakeholders outwith government” and ask that the final version contains “much greater clarity on the process of ‘gathering information to support, assess and consider’ areas with which to align” and “a decision-making framework would be helpful to see.”
36. Our Adviser, Professor Lock, points out that the draft policy statement states that “use of the power may be considered within the upcoming reporting period as necessary” but does not elaborate on the criteria for considering the use of the power as ‘necessary’. He suggests that in light of the Scottish Ministers’ obligation under s. 6 (1) Continuity Act to ‘publish in such manner as they consider appropriate, a statement of their policy (a) on the approach to be taken [and] b) the factors to be taken into account’, the Committee might want to query:
- Why does the draft policy statement not elaborate on the precise criteria for assessing the necessity of considering the use of the power during the upcoming reporting period?
- What are the criteria for considering the use of the power as being ‘necessary’?
- What is the justification for restricting the use of the power to ‘necessary’ cases only given the broad discretion enjoyed by the Scottish Ministers according to section 1 of the Continuity Act?
37. The Committee’s view is that the draft documents currently provide limited information to aid scrutiny of the Scottish Government’s commitment to continued EU alignment and consideration should be given to providing a fuller picture. Further clarity is required particularly in relation to why the Scottish Government consultation document noted above sets out plans to use the keeping pace power while the draft annual report states the power has not been used and there are no plans for its intended use.
38. Further detail is also required in relation to the criteria Scottish Ministers are using when deciding whether to use the keeping pace power including the criteria for considering the use of the power as being ‘necessary’.
39. The Committee also recommends that consideration should be given to amending the draft documents to provide information on decisions to align and not to align with EU law rather than the narrow focus on the use of the power (to be read in conjunction with the recommendation at paragraph 81 below.) In particular, the Committee recommends that to aid transparency the Annual Report should include detailed information in relation to aligning with EU Directives which come into effect during the reporting period including those listed in Annexe B.
40. The Committee also invites the Cabinet Secretary to provide details of how he has had regard to all of the proposed amendments to the draft documents which are suggested by our witnesses and Advisers above in his response.
Factors to be taken into account
41. The draft policy statement while stating that the default position is to align with EU law provides some information on factors to be taken into account in deciding whether to keep pace. The evidence we received highlights the need to provide more detailed information in this section of the document.
UK Regulatory Divergence with the EU and Regulatory Divergence within the UK/GB
42. A further significant factor which our Advisers note needs to be taken into account is the impact on Scotland of future regulatory divergence between the UK and the EU and within the UK/GB. The UK Government announced in September 2021 that they intend to conduct a review of retained EU law. Lord Frost explained in statement to the House of Lords that “we are going to make this a comprehensive exercise and I want to be clear: our intention is eventually to amend, to replace, or to repeal all that retained EU law that is not right for the UK.”
43. The Trade and Cooperation Agreement (TCA) does not require the UK to maintain regulatory alignment with the EU but as Professor Keating points out there are incentives to do so. There is a non-regression provision so that, if UK regulations are lowered, the EU is permitted to suspend part of the agreement or take retaliatory action. There is also provision for revising the Agreement should either side fail to keep up with new regulatory standards.
44. The UK Internal Market Act (UKIMA) does not affect the competence of the Scottish Parliament to align with EU law. It does, however, introduce the principles of non-discrimination and mutual recognition. This means that goods eligible to be sold in any part of the United Kingdom can be marketed in any other part, even if they do not meet the regulatory requirements of that part.
45. Professor Armstrong told us that it is not currently clear how the Parliament will know that the Scottish Ministers have determined that it is not feasible to align with EU law because of a constraint arising from the application of the market access principles in the UK Internal Market Act and when a decision not to align was simply an exercise of their policy discretion.
46. The extent to which the provisions of the UKIMA will limit regulatory divergence across the UK/GB will to some extent depend on the operation of agreed common frameworks applied across the UK nations. Professor Keating points out that common frameworks will govern the extent of common regulations and the agreed scope for divergence (so potentially hindering or allowing Scotland to follow EU regulations).
47. Dr McCorkindale highlights the continuing and private nature of inter-governmental negotiations about common frameworks and how they will interact with the market access principles obscures the true extent of the freedom Scottish Ministers will in fact have to align with EU law where there UK diverges from EU law and regulatory standards.
48. Professor Hayward points out that there is a lack of consideration in the draft policy statement for the practical consequences of alignment for Scottish producers (specifically those exporting to England and Wales) given the context of intended divergence from EU laws in areas that are highly regulated and subject to detailed legislation in the EU, specifically food safety, and plant and animal health. Professor Hayward’s view is that it should be made clear that the more its closest market diverges from the EU, the more difficulty there will be for Scotland if it seeks continued alignment with EU law.
49. Moreover, Professor Hayward interprets the UK Internal Market Act to mean that goods produced English or Welsh-defined standards would be sold without discrimination in Scotland. Scottish producers meeting potentially higher EU standards will potentially face a competitive disadvantage on their home market.
50. The Committee recommends that the draft policy statement is amended to include details of how any future regulatory divergence between the UK and the EU will impact on the commitment to align with EU law. In particular, how this will be monitored and assessed and whether impact assessments will be routinely done when deciding on keeping pace. This should include more details of the Scottish Government’s assessment of how the operation of the TCA, the UK Internal Market Act and common frameworks will impact on the extent of possible EU alignment within Scotland.
EU Implementing Legislation
51. Professor Katy Hayward points out that because EU directives, regulations and decisions do not always provide detail for the procedures, processes or requirements that may be necessary for implementation, such details are instead set out in EU implementing legislation. There can be around a thousand such pieces of legislation issued per year and these are highly technical.
52. Professor Hayward explains that determining which measures apply to Northern Ireland, and which do not, is an enormously complex and time-consuming task. The Joint Consultative Working Group (JCWG) has been established under the Ireland/Northern Ireland Protocol. Its role is to notify the UK government as to what measures could be relevant to Northern Ireland under the Protocol. This can entail notice of up to 50 measures per week. Professor Hayward also points out that outwith the JCWG there is is no comprehensive and or publicly-accessible register of this implementing legislation.
53. The Committee notes that the complexity faced by the UK Government in understanding which EU law/legal measures apply to Northern Ireland under the Protocol demonstrates the challenge for the Scottish Government in maintaining awareness of EU legislative developments. It also demonstrates the extent of the challenge for the Scottish Parliament in scrutinising EU alignment.
54. The Committee recommends that the draft policy statement is amended to include details of how the Scottish Government will keep abreast of the relevant implementing legislation and how it intends to keep pace with these measures.
Public Consultation
55. The draft policy statement states that in considering use of the Continuity Act power, the Scottish Government will pro-actively engage with relevant stakeholders and local Government and ensure that representations are considered as part of the decision making process, along with a range of other available information and evidence.
56. HRCS told us that that there is mention of consultation in the draft policy statement but “there is little detail on what it means or looks like” . They would like more clarity in relation to the consultation process including –
- whether relevant stakeholders’ includes civic society organisations;
- the forums or approaches that will be taken to such engagement including making sure that this is accessible and transparent; and
- that this engagement will be for the broader purpose of ‘keeping pace’, not only narrowly about these Continuity Bill powers.
57. Using the Scottish Government’s published list of consultations on its website and its Citizen Space webpage, SPICe looked at how many published consultations for proposed legislation since the start of 2021 included reference either to continued alignment or keeping pace with EU law. The results of the search suggested two consultations included such a reference –
58. The Cabinet Secretary provided examples of a number of areas where decisions on alignment have been required including issues relating to Transport Scotland, on-going issues with regard to single-use plastics and seed potatoes and issues relating to plant health, gene editing and genetically modified crops, UK statistics and district heating. With the exception of single-use plastics it is not clear from the SPICe search of published consultations how much public consultation there has been in relation to decisions to align.
59. The Committee recommends that the information on how the Scottish Government intends to consult provided in the draft policy statement be updated to include details of –
- whether relevant ‘stakeholders’ includes civic society organisations;
- the forums or approaches that will be taken to such consultation and engagement including making sure that this is accessible and transparent; and
- whether this engagement will be for the broader purpose of ‘keeping pace’, not only narrowly about the exercise of the keeping pace power.
60. The Committee recommends that consideration be given to updating the draft annual report to provide details of all public consultations, which include consideration of whether or not to align with EU law, that the Scottish Government has carried out during the reporting period. The Committee also recommends that this information is provided annually.
The Scottish Government’s policy commitment to align with EU Law
Decision-Making Framework
61. As highlighted by Dr McCorkindale, the level of parliamentary input to the decision-making process around keeping pace has yet to take shape. As he points out the Cabinet Secretary committed during Stage 1 consideration of the Bill to “working with the Parliament to agree an appropriate and proportionate decision-making framework” that would “provide for an appropriate level of consultation at the earliest stages of policy development”.
62. HRCS note in their written evidence to us that one of the key areas of debate during passage of the Continuity Bill through Parliament was the need for openness of decision-making around these powers. This should not be simply left to the discretion of Ministers but that Parliament and other stakeholders should be a core part of the decision-making process. In their view, “scrutiny of decision-making about EU alignment is key, and there was recognition that this included decisions about when not to align with the EU (including using these powers) as well as decisions about when to do so.”
63. The HRCS told us that “transparency and scrutiny of the decision making around when to align and when not to align is crucial for making sure that we align wherever it means that we will advance or maintain rights and standards.” However, in their view it is not clear from the draft policy statement or the draft annual report “whether that is happening, how it is happening or the criteria that are being used for those decisions. We are left with lots of questions, which is concerning for transparency.” Professor Armstrong told us that what “we really lack is a framework for analysing the explanations of why alignment happens or does not.”
64. As noted by SPICe, throughout Parliament's consideration of the Continuity Act, the Scottish Government committed to work with the Parliament to agree an appropriate and proportionate decision making framework for future alignment with EU law. The Bill’s policy memorandum states that “it is the Scottish Government’s view that the extent to which devolved law aligns itself with the law of the EU should be a decision for the Scottish Parliament to take.”
65. The Scottish Government also stated in response to the Finance and Constitution Committee’s Stage 1 report on the Bill that it is -
“committed to working with the Parliament to agree an appropriate and proportionate decision-making framework for future alignment with EU law. It is the Government’s view that using such a framework to provide for an appropriate level of consultation at the earliest stage of policy development is far preferable to devising and prescribing procedural requirements to take effect at the end of the process.”
66. One option which emerged from the evidence provided to the Committee was the use of consultative forums to facilitate wider involvement in the decision-making process to align with EU law. Two specific examples were provided.
67. COSLA highlighted Section 9 (7)(a)(i) within the Continuity Act which provides for the consultation of Local Government whenever a Scottish Minister is keen to use the “keep pace” powers to align with new EU targets. However, they state that this has not yet led to joint work to develop the specifics of the consultation arrangements with Local Government through COSLA.
68. HRCS also highlighted the recommendation of the First Minister’s Advisory Group on Human Rights to establish a National Monitoring Mechanism for Monitoring, Reporting and Implementation (NMMRI). One of the core purposes of the NMMRI was defined by the FM Advisory Group as ‘Monitoring the EU and reporting relevant rights developments to the Scottish Government, Scottish Parliament and the public for consideration of adapting any such developments within devolved areas of competence.’
Monitoring and Reporting on EU Legislative Priorities
69. One of the key themes of our inquiry was the need for the Scottish Government to monitor and report on EU legislative priorities within the context of the commitment to maintain alignment with EU law. As highlighted by Professor Armstrong, outside the European Union, “the UK does not have the same access to that flow of information and that parliamentary structures—the UK Parliament and the Scottish Parliament—are highly reliant on whatever the Governments can provide by way of information.”
70. The Committee notes that in its response to the Finance and Constitution Committee Stage 1 report on the Bill the Scottish Government gave a commitment to -
“providing a regular report addressing the EU’s upcoming legislative priorities, and how they may impact on devolved interests. The Scottish Government anticipates that this could be agreed as part of the Parliament’s involvement in the decision-making framework on alignment, and that an amendment to the Bill is unnecessary. We would also note that the most appropriate moment in time to provide any such report may depend on publications at an EU level, for example of the European Commission’s work programme, and that these do not necessarily reflect fixed commitments at an EU level, but often evolve over time after publication.”
71. The Committee notes that although the Europe Commission’s work programme for 2022 including 42 new policy initiatives was published on 19th October 2021 there is no mention of this in either the draft policy statement or the draft annual report.
72. Professor Armstrong told us that it would be helpful if there were some mechanism for monitoring and scrutinising the Commission’s work programme “to see how much is relevant to Scotland, and to see what would explain why the Scottish Ministers decide, whether by regulations or primary legislation, to align or not.”
73. The Committee explored with the Cabinet Secretary the extent to which the Scottish Government could publish regular information on the delivery of its commitment to keep pace. In particular, the Committee highlighted a proposal that the Scottish Government could publish on its website a colour coded system to indicate where it intended to align with EU legislation, where it did not and where it was thinking about it.
74. The Cabinet Secretary responded that he is satisfied that “in relation to any measures being considered for alignment, stakeholders are being properly informed about proposals and people are having the opportunity to take part in consultations, give advice or share their thoughts.” But he added that he is keen for his officials to work with the clerks on the optimal way of ensuring that the Committee and stakeholders “are best informed about measures that are coming forward.”
75. One option which he suggested was to focus on the European Commission’s annual work programme and the priorities of the incoming presidencies of the European Union. He suggested that the Scottish Government “could signal what we expect to come through those processes and how we intend to remain aligned with the proposals and priorities.”
76. With regards to the specific proposal of a website providing colour coded information in relation to the extent of EU alignment he indicated that he is “perfectly happy to take away specific suggestions from colleagues on which transparency mechanisms would be most workable” and “work with clerks and members of the committee on what might be the best way of doing things.”
77. The Committee also asked the Cabinet Secretary whether he has had any joint ministerial discussions on how the Scottish Government might manage and monitor the commitment to align with EU law and how that might be communicated that not just to the Parliament but more widely to businesses, civic society and local government. He responded that “such matters operate largely at an official level. Things come back from Scotland house in Brussels and one takes a view, in conjunction with legal and external affairs colleagues, on whether proposals are such that alignment measures need to be taken.”
78. The Committee also notes the submission of the Law Society of Scotland to our inquiry on the Scottish Government’s international work which states that “we feel more formal mechanisms for MSPs to oversee the Scottish Government’s international engagement” particularly in relation to alignment with EU law “would be beneficial.” In their view “one potential option would be a memorandum of understanding” between the Scottish Government and the Scottish Parliament.
79. The Committee believes that in addition to the recommendation in this report in relation to the draft policy statement and the draft annual report there is an urgent need for Scottish Parliament and Scottish Government Officials to work together to develop proposals to facilitate effective scrutiny of the commitment to align with EU law.
80. This should include developing proposals which deliver the Scottish Government’s commitment to a decision-making framework which will facilitate an appropriate and proportionate level of scrutiny of Ministerial decisions to align with EU law. Consideration should also be given to how to ensure the involvement of businesses, local government, civic society and other stakeholders in the decision-making framework including a greater use of consultative forums which are open and transparent.
81. The Committee recommends that it should also include proposals for the timing and level of Scottish Government information to support parliamentary scrutiny and stakeholder engagement in relation to both the decision-making process around alignment with EU law and the implementation of decisions to align. This should include consideration of a website providing colour coded information to make clear what decisions the Scottish Government is taking about areas of EU law and policy to meet its commitment to align with EU law.
82. Finally, the Committee notes the proposal of the Law Society of Scotland in relation to a Memorandum of Understanding (MoU) between the Scottish Government and Scottish Parliament. We recommend that a MoU should be considered by officials in developing proposals to facilitate effective scrutiny of the commitment to align with EU law.
Annexe B
EU Directives which comes into effect during the reporting period
Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast) [2020] OJ L 435/1;
Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services [2019] OJ L 136/1.
Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC [2019] OJ L 136/28.
Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) [2019] OJ L 172/18.
Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment [2019] OJ L 155/1.
Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for the delivery of waste from ships, amending Directive 2010/65/EU and repealing Directive 2000/59/EC [2019] OJ L 151/116.
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