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Chamber and committees

Constitution, Europe, External Affairs and Culture Committee


Draft Statement of Policy by the Scottish Ministers in Exercise of the power in Section 1 of the UK Withdrawal From The European Union (Continuity) (Scotland) Act 2021

Draft Statement of Policy from the Scottish Ministers to the Committee, 29 October 2021


Draft Statement of Policy by the Scottish Ministers in Exercise of the power in Section 1 of the UK Withdrawal From The European Union (Continuity) (Scotland) Act 2021

Introduction

In accordance with section 6 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (“The Act”), the Scottish Ministers make the following draft statement explaining their approach, the factors to be taken into account and the process to be followed when considering use of the regulation making power under section 1 of the Act.

This statement is laid in the Scottish Parliament in draft in accordance with section 7 (3) for a period of 28 days, during which time the Scottish Ministers will have regard to any representations made to them regarding it.

In laying a copy of the final policy statement before the Scottish Parliament for approval under section 7(1), the Scottish Ministers will also lay, in compliance with section 7(4), a document describing how they have had regard to any representations made about this draft statement in accordance with section 7(3)(b) in preparing the final statement.

Background

The UK’s decision to leave the European Union has not changed the EU's importance to Scotland nor our commitment to it.

For nearly 50 years Scotland has been a fully integrated part of the EU; woven into the European economy and benefitting from the high standards of the EU's social and regulatory protections. Through our membership of the European Single market and Customs Union, Scotland has embraced EU membership and in turn contributed to the EU's success.

The Scottish Government’s European Strategy, The European Union’s Strategic Agenda for 2020-24: Scotland’s Perspective published in 2020 and the paper Steadfastly European: Scotland’s past, present and future earlier this year reaffirmed Scotland’s commitment to work in partnership with the EU to realise our shared values and address global challenges.

Consistent with this commitment, Scotland will seek to align with the EU where appropriate and in a manner that contributes towards maintaining and advancing standards across a range of policy areas. It will do so to protect the health and wellbeing of people in Scotland, maintain Scotland’s international reputation, and, by protecting the standards that Scotland enjoys, ease the process of Scotland’s return to the EU.

Statement of Policy

Approach

Maintaining alignment with EU law and the high standards that Scotland has enjoyed as part of the EU is a priority of the Scottish Ministers. This will be achieved in a range of different ways, legislative and non-legislative. Scottish Ministers will make use of whichever means is most appropriate for the circumstances of each case. The power provided in section 1 of the Act aims to maintain the Scottish Ministers’ ability to make subordinate legislation where appropriate in order to keep devolved Scots law aligned with EU law as it develops.

It is the intention however that this commitment is implemented primarily through the existing policy development process. There will also be instances where Primary legislation is more appropriate than secondary legislation to maintain alignment. Where secondary legislation is appropriate, in some cases, it may be possible to align with EU law using specific domestic powers that cover the subject matter of the EU legislation. Where this is the case, although it is still legally possible to use section 1(1) of the Act to align, the policy is in line with the approach previously taken to the use of section 2(2) of the European Communities Act 1972 to implement EU law. Specific domestic powers should be preferred, unless there is good reason for not using these powers.

The power in section 1 of the Act 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. This recognises that primary legislation will not be appropriate in all cases and alignment could be constrained by the overall limit of legislative time available to the Parliament to align with EU law which would previously have been achieved by using the powers in section 2(2) of the European Communities Act 1972. The power therefore acts as a backstop, providing flexibility so that the most appropriate legislative vehicle can be used depending on specific circumstances.

Factors to be taken into account

Scottish Ministers’ default position, for the reasons set out above, will be to align with EU law. There will however be occasions, such as technical provisions only relevant to EU member states, where such alignment would not assist the intended outcome, or where the constraints under which Scottish Ministers currently operate, in particular as a result of the working of the UK Internal Market Act, mean that they judge that to align in full at this time would not serve Scotland’s wider interests.

In coming to that view, Ministers will take account of the full range of interests, whether economic, social, environmental or other. They will also give due regard to the purpose referred to in section 2(1) of the Act, i.e. to contribute towards maintaining and advancing standards in, but not limited to, environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights, and social protection.

1. Legislation

  • That specific domestic powers could not achieve the desired outcome or there is a good reason for not using these powers;
  • primary legislation would not be more appropriate
  • the financial implications, benefits and risks of the proposed legislation.

2. Purpose

  • that due regard has been given to the purpose referred to in section 2(1) of the Act, that the regulations contribute towards maintaining and advancing standards in, but not limited to, environmental protection, animal health and welfare, plant health, equality, non-discrimination and human rights, and social protection and;
  • that regulations will not breach the limitations on the use of the power proscribed at Section 3;

3. Existing Legislative Obligations

  • The effect (if any) of the provision on:
  • retained EU law
  • equality legislation being the Equality Act 2006, the Equality Act 2010 or any subordinate legislation made under either of those Acts.
  • Convention rights within the meaning of section 1 of the Human Rights Act 1998, and other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom
  • employment and health and safety and matters relating to consumer protection.
  • That due regard has been given to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010

4. Consultation

  • The Scottish Government’s approach to outcomes based policy making recognises that consultation is an essential part of the policy making process, and values the views, insights and expertise of those who are directly and indirectly affected by Ministers policy decisions. 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.

Process

In seeking to give effect to the purpose of the power under section 1(1) of the Act, that is maintaining and advancing standards in a range of policy areas, the Scottish Government will gather information to support, assess and consider the case for the regulations proposed. This will include, but not be limited to, close monitoring of activity in the EU institutions.

This will take into account, in addition to the factors to be considered detailed above, the Scottish Government’s International Framework, its purpose, achievement of the national outcomes detailed in the national performance framework, and the Scottish Government’s approach to outcomes based policy making.

Irrespective of Brexit, the Scottish Government continues to engage in international exchanges and learning opportunities across relevant policy areas, to understand how domestic policy relates to the European and wider international context.

Policy areas work closely with, and are supported by, officials within the Scottish Government’s External Affairs, Legal and Brussels directorates. This assists the Scottish Government to understand and influence EU policies that affect Scotland’s citizens, organisations and the economy, and maintain and advance the standards Scotland enjoys as a result of the UK’s previous membership.

Review

Ministers will keep this statement of policy under review and may publish a revised policy statement from time to time if in their view this is considered necessary and appropriate in maintaining the effective use of the power in section 1(1) of the Act.

Where the Scottish Ministers make a statement under section 9(9) of the Act, they will as soon as reasonably practicable review the policy statement, and either revise and publish the revised policy statement, or lay before the Scottish Parliament a document explaining why, in their opinion, it is not necessary to revise the policy statement.

Conclusion

The UK’s decision to leave has not changed Scotland commitment to work in partnership with the EU to realise our shared values and address global challenges. Scotland will therefore seek to align with the EU where appropriate and in a manner that seeks to contribute towards maintaining and advancing standards across a range of policy areas. Doing so will also ease the process of Scotland’s return to the EU.

This policy statement sets out that the Scottish Government will consider a range of factors to ensure that use of the power to maintain alignment with the EU where appropriate is both effective and efficient.

Scottish Ministers
29 October 2021