The Scottish Government has begun publishing Brexit statutory instruments (SSIs) under the European Union (Withdrawal) Act 2018 ("2018 Act") in areas that are devolved to Holyrood. A detailed analysis of Brexit statutory instruments published by the UK Government can be found here.
The 2018 Act allows for the Scottish Government to "make such provision as the devolved authority considers appropriate to prevent, remedy or mitigate" any deficiency in retained EU law.
A bit of background...
The 2018 Act was passed last June, but without the Scottish Parliament's consent. A key objection was to the power given by the 2018 Act to the UK Government to limit Holyrood's ability to make laws after Brexit in certain areas that are currently controlled by EU law (such as agriculture, fisheries and the environment). The UK Government would be able to "freeze" the status quo until it could put UK-wide frameworks in place to replace existing EU regimes.
Anticipating a failure to agree on the terms of the 2018 Act, the Scottish Government published the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill ("Continuity Bill") which was intended to give Scottish Ministers freestanding powers to amend Scots law to take account of Brexit. After the Continuity Bill was passed by the Scottish Parliament, the UK Government asked the Supreme Court to rule on whether it was within Holyrood's devolved powers.
On 13 December 2018, the Supreme Court unanimously held that while the Bill as a whole is within the Scottish Parliament's legislative competence, parts of it are not. Our detailed analysis of the Supreme Court's decision is here.
The short point is, however, that the Continuity Bill cannot receive Royal Assent in the meantime and the Scottish Government must rely instead on the powers given to it by the 2018 Act to make changes to the law in anticipation of Brexit.
The first Scottish Brexit orders
Regulations under the 2018 Act are intended to ensure "a functioning statute book" after the UK's exit from the EU, for example by amending references to redundant EU legislation or institutions in UK and devolved legislation, and providing for certain functions to be undertaken by UK or devolved bodies instead.
A number of Brexit SSIs have been made over the past few weeks under the 'negative' procedure _ used for orders likely to be uncontroversial. SSIs made using the negative procedure are simply laid in the Scottish Parliament and automatically become law unless positive steps are taken to annul them. The 'negative' SSIs made so far are:
- the Aquatic Animal Health and Alien Species in Aquaculture (EU Exit) (Scotland) (Amendment) Regulations 2019;
- the Licensing (Amendment) (EU Exit) (Scotland) Regulations 2019;
- the Fisheries (EU Exit) (Scotland) (Amendment) Regulations 2019;
- the Fertilisers and Pesticides (EU Exit) (Scotland) (Miscellaneous Amendments etc.) Regulations;
- the Environment (EU Exit) (Scotland) (Amendment etc.) Regulations 2019; and
- the Animal Welfare (EU Exit) (Scotland) (Amendment) Regulations 2019.
We will publish a separate briefing on the Environment Regulations in the near future.
The Aquatic Animal Health Regulations aim to ensure the continued operation of Scotland's aquatic animal health framework, mainly the Aquatic Animal Health Regulations (Scotland) 2009 and the Alien and Locally Absent Species in Aquaculture Regulations (Scotland) 2015. On exit day, a number of technical changes will be made, in particular, removing references to EU Member States and substituting Scotland and the Scottish Ministers. The Regulations also modify current procedures: for example, EU officials will no longer have the power to accompany inspectors who monitor aquatic businesses' compliance with requirements on disease control, transportation and animal health certification.
The Licencing Regulations will ensure the continuing and effective operation of Scottish licensing legislation. For example, current legislation regulating the sale of alcohol and crossbows and knives provides for "a European Union photo card driving licence" as proof of age when buying such items. The Licencing Regulations will make sure that, in addition to the EU driving licence, UK driving licences will also continue to be recognised as proof of age.
The Fisheries Regulations amend various pieces of primary and secondary Scottish legislation concerning aquaculture and fisheries. EU requirements and obligations that will become redundant or will no longer be appropriate after exit day will be updated, removed or replaced. For example, the Regulations restrict the rights and obligations that currently apply to EU fishing boats so they will only apply to UK vessels, with EU fishing boats to become subject to the same rules as currently apply to third country boats. The Regulations do not otherwise introduce any policy changes. The Regulations will also amend references to out of date EU legislation within existing Scottish legislation, to ensure references to EU law as it applies immediately before Brexit are accurate.
The Fertilisers and Pesticides Regulations will amend the EC Fertilisers (Scotland) Regulations 2006, substituting references to "EC fertiliser" with the new designation of "UK fertiliser", which a fertiliser sold in Scotland will only be able to use if the manufacturer is established in the UK. The Regulations also remove provisions that permitted European Commission officials to accompany a local authority (or Scottish Government) appointed inspector when taking action to enforce fertiliser regulations, and provisions that empowered the Scottish Ministers to grant or withdraw approval of laboratories for the purposes of the underlying EU Regulation on fertilisers.
The Pesticides (Maximum Residue Levels) (Scotland) Regulations 2008 will also be amended, to remove the Scottish Ministers' role in relation to the underlying EU Regulation on maximum residue pesticide levels and replace Annex 1 to that Regulation, which lists products subject to maximum residue levels ("MRLs") of pesticide, with a reference to Part 1 of the MRLs register in relation to Scotland.
The MRLs register will be established under the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019, which will be made by the UK Government. The UK Government has also published the draft Fertilisers and Ammonium Nitrate Material (Amendment) (EU Exit) Regulations 2019. These UK Regulations will deal with the majority of changes to fertiliser and pesticide regulation on a UK-wide basis, indicating a significant degree of cooperation between the UK and Scottish Governments on this matter.
The Animal Welfare Regulations will make mainly technical changes to the EU legislation in this area that will be retained as domestic law after Brexit, without making substantial changes to any animal welfare policy matters. They amend or remove references to the underlying EU legislation (including to reflect changes that will be made to that legislation at UK level by the Animal Welfare (Amendment) (EU Exit) Regulations 2019), remove the Scottish Ministers from their position as the competent national authority for the purposes of implementing that EU legislation, and remove references to European Commission officials participating in inspections of premises for the purposes of animal welfare.
Each of these SSIs is subject to a 40-day window in which any Member of the Scottish Parliament can put down a motion of annulment before the Delegated Powers and Law Reform Committee. The lead committee then decides whether to recommend to the Parliament that the SSI be annulled. The lead committee's reports on each of the Regulations listed above are expected to be published up until 18 March 2019, ten days before the UK is expected to leave the EU. The progress of each Brexit-related SSI can be tracked on the Scottish Parliament's website.
The Scottish Government has also published five draft SSIs to be made under the 'affirmative' procedure, meaning they require the positive approval of the Parliament. These are:
- the draft INSPIRE (EU Exit) (Scotland) (Amendment) Regulations 2019;
- the draft Insolvency (EU Exit) (Scotland) (Amendment) Regulations 2019;
- the draft Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019;
- the draft Fishery Products (Official Controls Charges) (EU Exit) (Scotland) (Amendment) Regulations 2019; and
- the draft Public Procurement etc. (Scotland) (Amendment) (EU Exit) Regulations 2019 (plus a separate set of Regulations amending those original Regulations).
The Scottish Government has also published a 'no-deal' procurement guidance document. We have published a separate analysis of the proposed changes to public procurement legislation.
The INSPIRE Regulations will make changes to the existing INSPIRE (Scotland) Regulations 2009, governing standards of spatial data (also known as geospatial data, being data that represents the location, size and shape of an object such as a building, lake or a city). The UK Government recently made the INSPIRE (Amendment) (EU Exit) Regulations 2018, amending the corresponding UK INSPIRE Regulations and related EU legislation, to ensure the continuous operation of a UK spatial data infrastructure. The Scottish INSPIRE Regulations effectively mirror the UK Regulations, so will ensure a common spatial data framework.
The Insolvency Regulations complement the UK Government's recently laid draft Insolvency (Amendment) (EU Exit) Regulations, which will make changes to the "retained" EU Insolvency Regulation ("EUIR"). These UK Regulations will maintain a modified version of the EUIR's jurisdictional tests for the opening of insolvency proceedings. These tests will sit alongside UK provisions on jurisdiction rules. The Scottish Regulations address the related devolved areas of company receivership, bankruptcy and protected trust deeds, to ensure that devolved Scottish insolvency legislation relating to jurisdiction, cooperation, and the recognition and enforcement of cross-border insolvency proceedings will function appropriately after Brexit.
The Jurisdiction and Judgments Regulations will revoke Brussels IIa, one of the main EU provisions on family law, to reflect the fact that the reciprocity required for Brussels IIa to operate effectively would no longer exist. In addition, the Regulations will amend relevant legislation to ensure that family cases involving same sex relationships will be treated in the same way as family cases involving opposite sex relationships: when same sex relationships were formalised in Scotland (civil partnership and same sex marriage), domestic provisions were made to mirror, so far as possible, Brussels IIa.
The Fishery Products Regulations will amend the Fishery Products (Official Controls Charges) (Scotland) Regulations 2007 to change the definition of third country from any non-EU country to any country or state other than the UK. Fish caught by EU vessels and landed in the UK will therefore be subject to the same landings charges that currently apply to fish caught by non-EU vessels. The Regulations also fix a set Sterling-Euro exchange rate (of £1 = ó1.1413) for those landings charges and the processing establishment charge, which are specified in Euros even in UK legislation, to replace the official rate published annually in the Official Journal of the European Union.
It is expected that each of these draft Regulations will be approved by the Parliament and made no later than exit day on 29 March 2019.
The UK Government has said that it expects a total of 800-1,000 Brexit SIs to be required ahead of exit day on 29 March 2019. The number of SSIs will be significantly smaller, though the Scottish Government is still expected to have to put in place several dozen Brexit Regulations before the UK leaves the EU. All of those will need to be considered by the Parliament's Delegated Powers and Law Reform Committee (particularly those affirmative SSIs seeking the approval of the Parliament), which may have its work cut out to review all the SSIs in the available time.
Please do visit our Brexit Hub for regular updates on Brexit related issues.