Scotland faces hard act keeping up with EU law: Faculty
A warning of the scale of the task facing the Scottish Government in attempting to “keep pace” with EU law under its Continuity Bill has been issued by the Faculty of Advocates.
In its submission to Holyrood's Finance Committee on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, Faculty says it seems clear that the task of monitoring and assessing each new EU instrument or decision "will be considerable", and so will the process of deciding whether the regulation-making power conferred by s 1 of the bill should be exercised in any particular case.
Introduced in June, the bill is the Scottish Government's second attempt to provide for continuity of EU law in Scotland after the end of the Brexit transition period, following the Supreme Court ruling that amendments to the Scotland Act 1998 rendered much of its original Legal Continuity Bill ultra vires.
It gives Scottish ministers power to keep devolved laws similar to EU laws using rule making powers similar to those in the European Communities Act 1972, and makes particular provision in relation to environmental principles and environmental law.
“Given the potential importance of such regulations, it will be important to ensure transparency of process and, to the appropriate extent in each case, to provide for adequate consultation with stakeholders and assessment of the potential impact of proposed regulations on all interests affected”, Faculty states.
“Clearly, the extensive use of secondary legislation for this purpose raises the issue of parliamentary scrutiny”. Care will also need to be taken that those affected by legislative changes made in this way “are aware of what is proposed, able to call for scrutiny of specific aspects and positioned to prepare to meet any new requirements on them or on their businesses”.
Faculty also points out that with no role in the EU law making process, unless the UK chooses to pursue alignment with the EU as part of its new relationship, “there may be problems in the Scottish ministers implementing EU laws that Scotland has not had a say in making and thus which might not take account of Scotland’s particular circumstances” – though there will be more scope when transposing directives, which allow greater latitude in the means of implementation.
Nor will the Scottish Government be able to keep pace in areas of EU law which depend on reciprocal arrangements between member states, such as the European health insurance card and the European arrest warrant.
Ministers' powers will in addition be constrained by UK provisions such as the European Union (Withdrawal) Act 2018, the current Trade Bill and the potential exercise of the power in s 30A of the Scotland Act 1998 to specify modifications of retained EU law that are to be outside the legislative competence of the Scottish Parliament.
In reply to the question whether there should be clearly defined criteria for assessing whether to replicate any particular EU law, and whether these should be set out in the bill, Faculty's view is that while this is principally a policy question, “we consider that the range of EU law that might be the object of such regulations – both as to subject matter and nature of the instrument - is such that the definition of criteria within the Bill would be an impossible task”.
However it might be helpful for the Scottish Government to issue guidance about the manner in which it anticipates exercising the new power and any specific policy areas in which it may be used; and for the Parliament to ensure adequate time dedicated to the scrutiny of draft regulations.
As regards information to be provided about proposed secondary legislation, Faculty believes the bill is an improvement on the UK Parliament's EU Withdrawal Act: “The devil will of course be in the detail in each case, but we consider that this is a good starting place.”
Parliamentary scrutiny will also be significant in areas of potential conflict with UK Government policy and legislation, in particular legislation made under the Trade Bill. “That is a matter which the Parliament may well want to be assured about.”