Michael Keating discusses the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, exploring its aims and the challenges the Scottish Government face with this Bill.
The Scottish Government, as is well known, is opposed to Brexit. It was against UK withdrawal from the European Union and favours an independent Scotland within the EU. Short of this, it has striven to keep Scotland as close to Europe as possible. A proposal in the aftermath of the Brexit referendum to keep Scotland in the EU Internal Market got nowhere as the UK Government had no interest in making this part of the Brexit negotiations. The latest proposals aim to allow Scotland to remain aligned with European rules in devolved fields such as agriculture and the environment. There is no legal or constitutional obstacle to this, since the Scottish Parliament would merely be exercising its own devolved powers. An earlier proposal on similar lines was withdrawn after the Supreme Court ruled that some provisions had been rendered unconstitutional by the UK’s EU Withdrawal Bill after the Scottish bill had been drawn up. The central idea, of aligning with the EU in devolved matters, however, was held to be constitutional.
The new UK Withdrawal from the European Union (Continuity) (Scotland) Bill aims to give effect to this policy. It does not give the Scottish Parliament any new powers. Rather it allows Scottish Ministers to use a fast-track procedure to adopt new European regulations, available for ten years and renewable for a further five. Similar powers are widely available to UK Ministers to act by statutory instrument in the Brexit process, but they have been widely criticized for reducing the scope for Parliament to scrutinize and amend proposals. Critics call them ‘Henry VIII powers’ after the English monarch and his penchant for ruling by decree. The same criticism can be aimed at the Scottish proposals. Whether they can be justified depends on what the general aim of the proposals is.
On the one hand, this may be part of a broad policy to keep Scotland as closely aligned as possible with the EU, on the assumption that Scotland’s relationship with Europe has not been closed with Brexit. Scotland might want to keep European rules so as to meet the conditions for it easily to rejoin the EU after a successful independence referendum. It may even want to keep aligned in the hope of a future special relationship without independence, perhaps on the lines of the Northern Ireland arrangement. In that case, it might need a broad system of keeping up with Europe across the board and adapting quickly to European changes.
On the other hand, the aim may be narrower, just to opt into European regulations where those are judged to be appropriate to Scotland. In this case, Scotland is merely learning and borrowing policy ideas from Europe, just it learns from other parts of the UK and foreign countries. If that is the aim, it is less easy to claim that a special fast-track procedure is needed. The Scottish Parliament could just legislate in the normal way.
While the Scottish Parliament does presently have the power to adopt European regulations in devolved matters, it is not clear how this will work in future. The UK and devolved governments are currently negotiating over ‘common frameworks’ governing powers coming back from Europe. These will mostly be voluntary but some may have a legislative backing, making it impossible for devolved legislatures to go against them where they conflict with the relevant EU regulations.
The UK Internal Market Bill, currently in the Westminster Parliament, poses a further problem. This provides that, if a product or service is approved in one part of the United Kingdom, it can be marketed across the UK as a whole. So, although the Scottish Government and Parliament could apply EU rules on food and agriculture, it could not stop products not meeting those standards to be sold in Scotland as long as they met the English rules. This would also extend to goods imported into the UK under a trade deal with the United States or other countries.
The Continuity Bill will allow Scottish Ministers to opt into EU regulations but they do not require it, as was the case during the UK’s membership of the EU. On the other hand, Scotland will have no say in making those regulations, as do EU Member States. Nor will Scotland automatically be informed of new rules or those in preparation. Keeping up with thus require a large effort of monitoring what is coming out of Brussels and what is in the pipeline. Given the limited capacity of the civil service in Scotland, this will need to be selective and much depends on whether the Government aims for systematic alignment or just for occasional policy learning.
Image from James Stringer on Flickr.