Part 1 – Alignment With Eu Law
Section 1– Power to make provision corresponding to EU law
27.Section 1 gives the Scottish Ministers the discretionary power to continue to keep devolved law in line with EU law following ‘IP completion day’.
28.The reference to ‘IP completion day’ refers to the end of the implementation period. Whilst not defined in the Act, the reference will have the same meaning as in the EUWA. This is by virtue of schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010 (as amended) (‘ILRA’). Paragraph 37(c) of schedule 5 of the 2020 Act amends schedule 1 of ILRA to define ‘IP completion day’ by reference to section 39(1) to (5) of that Act.
29.Subsection (1)(a) gives Ministers the power, by regulations, to make provision that would correspond to provision in EU law as it has effect in EU law after the end of the implementation period. Sub-paragraphs (i) to (iv) set out the different types of EU law that provision may be made in relation to, namely EU regulations, EU tertiary legislation, EU decisions and EU directives. These terms are defined in section 12 and refer to the versions applicable in the rest of the EU (as opposed to those which form part of domestic law as retained EU law) and as they have effect in EU law after IP completion day. See paragraphs 71-76 for information on the definitions contained in section 12.
30.There are two aspects to the power in subsection (1)(a). In addition to enabling the Scottish Ministers to make provision corresponding to EU law as it develops after the implementation period (sub-paragraphs (i), (ii) and (iii)), the power also enables Scottish Ministers to make provision in relation to existing EU laws, which have been implemented or have effect domestically already (sub-paragraph (iv)).
31.Subsection (1)(b) mirrors the power in section 2(2)(b) of the ECA. This is the power which can be used to deal with matters ‘arising out of or related to’ EU obligations and permits implementing provision which goes beyond the minimum necessary to implement an EU obligation.
32.Subsection (2) clarifies the extent of Ministers’ ability to adapt provision made under subsection (1)(a)(i), (ii) and (iii) so that it operates effectively in Scots law despite the UK no longer being a member state of the EU. The subsection provides a list of the adaptations that may have to be made by Ministers.
33.Subsection (3) sets out some of the things that can be done using the power under subsection (1)(a)(i), (ii) and (iii), such as providing for EU functions to be carried out by public authorities in Scotland.
34.Subsection (4) sets out some of the things that can be done using the power under subsection (1)(a)(iv) to amend existing EU law implementation. In such cases where an EU function is already being carried out by a public authority in Scotland, the power will enable that function to be further sub-delegated or conferred on a different public authority.
35.Subsection (5) provides that, where a Scottish public authority has been given a function by virtue of regulations made under subsection (1), the Scottish Ministers may by regulations enable it to charge fees or other charges in connection with carrying out that function. It contains an illustrative list of some of the things that this power may do. In particular it may set the amounts of fees or charges or say how they are to be determined, for example by a formula. It may also provide for how the money is collected and spent. Subsection (5)(c) provides that regulations made under this power can sub‐delegate this power to another public authority that has the function.
36.Where regulations do provide for such sub-delegation, the use of this power will be subject to the affirmative procedure by virtue of section 5(2)(e). The exercise of the sub-delegated power will be subject to whatever arrangements for scrutiny are set out in the relevant provisions. Where this power is used to impose a new fee or increase a fee or charge then it is subject to the affirmative procedure by virtue of section 5(2)(c), except where regulations simply alter a fee or charge to reflect changes in the value of money. In those circumstances the regulations will be subject to the negative procedure.
37.Subsection (6) establishes that the power may be used to make any kind of provision that could be made by an Act of the Scottish Parliament. This means, for example, that the power may be used to modify retained EU law in so far as that is otherwise within the scope of the power by virtue of subsection (1) (and subject to any restrictions which may be imposed by section 30A of the Scotland Act (introduced by section 12(2) of the EUWA)).
Section 2 – Purpose of maintaining and advancing standards
38.Section 2 sets out that the purpose of section 1(1), amongst other things, is to contribute towards maintaining and advancing standards in certain specified areas, namely: environmental protection; animal health and welfare; plant health; equality, non-discrimination and human rights; and social protection. When using the power under section 1(1), the Scottish Ministers must have due regard to this purpose.
39.While section 48 of the Act sets out that the purpose of the Act as a whole is to make provision in connection with UK withdrawal, section 2 specifically relates to the use of the power under section 1(1), effectively providing a steer as to how the power should be used, without removing the discretionary nature of the power, or limiting the use of the power to the areas listed.
Section 3 – Limitations on the section 1(1) power
40.Section 3 sets out limits on the use of the power, which are that it cannot be used to:
impose or increase taxation, make retrospective provision or create certain types of criminal offence;
provide for the establishment of a Scottish public authority;
remove protections relating to judicial independence or make provision contrary to section 1 of the Judiciary and Courts (Scotland) Act 2008;
confer on public authorities in Scotland functions that are inconsistent with the general objects and purposes of the authority; or
modify the Scotland Act 1998 (or the protected subject-matters listed in section 31(5) of that Act), the Equality Act 2006 or the Equality Act 2010. Subsection (2) qualifies the limitation on removal of judicial protection or modification of the Equality Act 2010 if alternative provision is made in the regulations that is equivalent to the protection being removed or modified.
Section 4 – Duration of the section 1(1) power
41.Section 4 provides that the power under section 1(1) expires and is no longer available to the Scottish Ministers six years after it comes into force. The Scottish Ministers may, by regulations subject to the affirmative procedure, extend that period. The power to extend may be exercised more than once but the period may not be extended beyond a maximum of 10 years from the date the power under section 1(1) comes into force.
42.Subsection (5) clarifies that although the power under section 1 expires, the regulations made under the power do not expire.
Section 5 – Scrutiny of regulations under section 1(1)
43.Subsections (1) and (2) set out the circumstances in which regulations made under section 1(1) powers are subject to the affirmative procedure of the Scottish Parliament (affirmative procedure means the regulations cannot be made unless a draft of them has been laid before and approved by the Scottish Parliament). These are when an instrument under section 1(1):
abolishes a function of an EU entity or public authority in a member State without providing for an equivalent function to be exercisable by any person, or provides for any function of an EU entity or public authority in a member State to be exercisable instead by a Scottish public authority or (as the case may be) to be conferred instead on another Scottish public authority or person,
imposes, or otherwise relates to, a fee or charge in respect of a function exercisable by a Scottish public authority (except where the alteration of the fee reflects changes in the value of money),
creates, or widens the scope of, a criminal offence, or
creates or amends a power to legislate.
44.Subsection (3) sets out that any instruments made under these powers that do not fall into the categories in subsection (2) are subject to the negative procedure. Negative procedure means the regulations can be made but are subject to subsequent annulment by the Parliament. However, subsection (3) also permits discretion for affirmative procedure to be applied as opposed to negative procedure, meaning that an instrument which would normally be subject to negative procedure could benefit from additional scrutiny by the Parliament where appropriate.
Section 6 – Policy statement on the section 1(1) power
45.Subsection (1) requires that Scottish Ministers must publish a statement of their policy on the approach to be taken, the factors to be taken into account, and the process to be followed when considering whether to use the power under section 1(1). It is for the Scottish Ministers to determine the most appropriate manner of publication.
46.Subsection (2) makes provision for the Scottish Ministers, at their discretion, to revise the policy statement and publish it accordingly.
47.Subsection (3) provides, with reference to section 9(9), that when the Scottish Ministers have laid an instrument or draft before the Scottish Parliament which contains provision that involves using the power under section 1(1) in a way that is not in accordance with the current published policy statement, then Ministers must review the policy statement and either publish a revised version, or lay a document before the Scottish Parliament explaining why, in their opinion, it is not necessary to revise it.
48.Subsection (5) makes clear that the use of the power under section 1(1) is not dependent on such a policy statement having first been published. This means that the Scottish Ministers can use that power before the policy statement is published.
Section 7 – Procedure for publication of policy statement
49.Section 7 sets out the procedure which must be followed before a policy statement, or revised policy statement is published by Scottish Ministers. It sets out a three stage process.
50.In the first stage, subsection (3) requires that Scottish Ministers must first lay a draft copy of the policy statement before the Scottish Parliament, and have regard to any representations made to them about the draft within 28 days of the draft policy statement being laid before the Scottish Parliament.
51.In the second stage, subsection (1) requires that Scottish Ministers must lay a copy of the statement before the Scottish Parliament for approval. Subsection (4) requires Scottish Ministers at the same time to lay before the Scottish Parliament a document describing how they have had regard to any representations made about the draft document.
52.Subsections (2) and (5) have the effect of allowing the Scottish Parliament a period of 28 days in which it can agree by resolution that the policy statement should not be approved, thereby preventing the Scottish Ministers from publishing it. If the Scottish Parliament makes such a resolution, then the Scottish Ministers will be required to review and revise the policy statement, having regard to any views expressed by the Scottish Parliament and to lay a copy of the revised statement before the Scottish Parliament. Subsection (6) makes clear that in those circumstances, the Scottish Parliament will have another period of 28 days in which to consider the revised statement.
53.In the third stage, following the expiry of 28 days without the Scottish Parliament having resolved that the statement should not be approved, Scottish Ministers are permitted to publish the statement as per the requirement under section 6.
54.Subsection (7) sets out that in calculating the periods of 28 days provided for by subsections 3(b) and (5), no account should be taken of any period during which the Parliament is dissolved or is in recess for more than four days.
55.Subsection (8) has the effect of requiring a first draft policy statement to be laid as soon as reasonably practicable after section 1(1) comes into force.
Sections 8 to 11 – Explanatory statements for, and reporting on, regulations under section 1(1)
56.Sections 8 and 9 require all instruments made, or laid in draft, under section 1(1) to be accompanied by written explanatory statements, setting out certain matters relating to the making of the instrument:
An explanation of the instrument and why Scottish Ministers consider there are good reasons for making it, for example to ensure the highest possible food safety standards are maintained, the pre-IP completion day law which is relevant to it, and its effect on retained EU law;
An explanation of the effect (if any) which the instrument has on Convention rights and other international human rights;
Whether it modifies any provision of equality legislation and if so, what its effect is;
That the Scottish Ministers have had regard to their duties under equality legislation;
The instrument’s effect on rights and duties relating to employment and health and safety, and matters relating to consumer protection (in so far as it would be within devolved competence for an instrument to have an effect on those matters);
Whether Scottish Ministers have consulted with local authorities, and others, and if so, the details of that consultation;
The likely financial implications of the provision (except where the regulations are subject to negative procedure).
An explanation of why, in the Scottish Ministers’ opinion, there are good reasons for laying the instrument or draft at that time, or, as the case may be, for using the power in that way, if the instrument or draft:
is laid before a policy statement is published under section 6(1);
is laid during the period between a revised policy statement being laid for approval and it being published; or
contains provision that involves using the power under section 1(1) in a way that is not in accordance with the policy statement published under section 6.
57.Section 8(4) requires the Scottish Ministers, if they fail to make such a statement, to set out the reasons why.
58.Section 8(5) requires the Scottish Ministers to arrange for the publication of these statements.
59.Section 8(6) provides that the Scottish Ministers do not have to comply separately with the requirement to make an explanatory statement if they have previously done so for an equivalent instrument (for example, where a draft has been withdrawn and re-laid with minor modifications).
60.Paragraph 16 of schedule 8 of the EUWA imposes a similar requirement for certain statements to be made (on or after IP completion day) in relation to Scottish statutory instruments (SSIs) which amend or revoke subordinate legislation made under section 2(2) of the ECA. The requirement applies to SSIs or draft instruments to be laid before the Scottish Parliament and it applies whether the SSI is made under powers conferred before, on or after IP completion day but it does not apply to powers under the EUWA itself. The duty falls on the Scottish Minsters or other authority making the instrument. In the event that the Scottish Ministers are required to make an explanatory statement under both section 9 of this Act and under paragraph 16 of schedule 8 of the EUWA, it would be possible for the Scottish Ministers to make a single statement.
61.Section 10(1) requires Scottish Ministers to prepare and lay before the Scottish Parliament a report explaining how the section 1(1) power has been used during the reporting period, and how Scottish Ministers intend to use it over such period of time as they may determine, as well as how those past and future uses contribute, have contributed, or are expected to contribute, to achieving the purpose set out in section 2 . It also requires Ministers to set out in that report any use of the power which has been considered during the reporting period.
62.The first reporting period is defined by section 10(2)(a) as the period from the day on which the section 1(1) power comes into force until 31 August 2021. Subsequent reporting periods are defined by section 10(2)(b) as each subsequent period of one year. Section 10(2)(c) defines the final reporting period as the period beginning with the day after the end of the last period of one year until the expiry of the section 1(1) power.
63.Section 10(3) makes clear that in relation to the report on the final reporting period, Scottish Ministers are not required to set out how they intend to use the power as per section 10(1)(c), nor how future uses of the power will contribute to the purpose as per section 10(1)(d).
64.Section 11 sets out the procedure which Scottish Ministers must follow before laying the report required by section 10(1). That procedure has two stages.
65.In the first stage, subsection (1) requires that the report must first be laid in draft (as soon as practicable, and no later than two months after the end of the reporting period, as required by subsection (3)), and that in preparing the final report Scottish Ministers must have regard to any representations made to them about the draft during a consultation period (subsection (2) clarifies that this process only relates to the forward-looking aspects of the report, i.e. the aspect where Scottish Ministers explain how they intend to use the power under section 1(1) in the future).
66.That consultation period is defined by subsections (7) and (8) as 28 days from the day on which the draft report is laid, not counting any periods when the Scottish Parliament is dissolved or in recess for more than four days.
67.In the second stage, i.e. the laying of the final report before the Scottish Parliament as required by section 11, subsection (4) provides that this may not be done before the end of the consultation period.
68.Subsection (5) requires that when the report is laid before the Scottish Parliament, a document must also be laid which summarises the representations received on the draft and how regard has been had to these in preparation of the final report.
69.Subsection (6) provides that should representations have been made proposing that primary legislation should instead be used in relation to any particular intended uses of the power, that document must cover those representations separately.
70.Should Scottish Ministers deem it necessary to bring forward regulations either before a report is laid, or which were not foreseen in the most recent report, it is expected that the reasons for doing so will be addressed as part of the explanatory statements required by sections 8 and 9.
Section 12 – Interpretation of Part 1
71.Section 12(1) defines several of the terms in Part 1 of the Act.
72.Subsection (2) makes clear that the power in section 1 does not require Ministers to implement the whole of an EU Directive or make provision corresponding to the whole of an EU Regulation.
73.In terms of the interpretation of provision made under the power in section 1 of the Act, whilst there is no express provision about this on the face of the Act, it is also relevant to note section 6 of the EUWA. Section 6(3) makes provision about the relationship between the Court of Justice of the European Union(4) (‘the CJEU’) and domestic courts and tribunals at the end of the implementation period.
74.Section 6(1) of the EUWA makes clear that CJEU judgments passed after the end of the implementation period are not binding on domestic courts in the UK. Section 6(2) of the EUWA establishes that, despite section 6(1), domestic courts may have regard to CJEU judgments delivered after the end of the implementation period in so far as any such judgments are relevant to any matter before the court or tribunal. In so far as a court may need to interpret provisions implemented under section 1 of this Act, it is considered likely to be relevant for a court to have regard to any case law of the CJEU interpreting the corresponding EU legislation.
75.Section 6 of the EUWA also makes provision regarding the interpretation and application of retained EU law. As a general proposition, section 6(3) makes clear that UK domestic courts remain bound by judgments of the CJEU and domestic courts passed before IP completion day (‘retained EU case law’), albeit the Supreme Court and the High Court of Justiciary in Scotland may choose to depart from such CJEU case law. This aspect of section 6 could potentially be relevant in so far as the power under section 1 is used to modify retained EU law.
76.The 2020 Act introduced amendments to section 6 of the EUWA to confer a new power on UK Ministers to make regulations providing for circumstances in which lower courts (to be specified under the power) may also not be bound by such retained EU case law. The regulations may also set the test that is to apply in deciding whether to depart from such case law. Depending on how the new power in section 6 is utilised, the resulting regulations could potentially have implications for the interpretation of provision made under section 1 of this Act.
The CJEU has jurisdiction to rule on the interpretation and application of the treaties. In particular, the Court has jurisdiction to rule on challenges to the validity of EU acts, in infraction proceedings brought by the Commission against member states and on references from national courts concerning the interpretation of EU acts. The Court is made up of two subcourts: the General Court and the Court of Justice (which is sometimes called the ECJ).
