At 11pm GMT on 31 December 2020, the transition period that followed the UK's exit from the EU will end and EU law will cease to have direct effect in the UK.
The UK Withdrawal from the European Union (Continuity) (Scotland) Bill  (the "Bill") is currently being considered by the Scottish Parliament and is at stage 2 of the parliamentary process. The Bill was introduced into the Scottish Parliament following the Supreme Court's determination that the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill was outwith the legislative competence of the Scottish Parliament because it conflicted with the European Union (Withdrawal) Act 2018.
In July, we posted about the provisions of the Bill that relate to environmental law in Scotland following the end of the transition period. If enacted, the Bill will also give Scottish Ministers the power to make secondary legislation for the purposes of maintaining alignment with EU law in devolved areas. This is known as the 'keeping pace' power and reflects Scottish Government policy to keep Scots and EU law aligned so far as within devolved competence.
The 'keeping pace' power
The keeping pace power is contained in section 1 of the Bill. It would allow the Scottish Ministers to make secondary legislation to, amongst other things:
- correspond to an EU regulation, EU tertiary legislation or an EU decision;
- implement an EU directive; and
- enforce any EU legislation.
Regulations made using the keeping pace power may make any provision that could be made by an Act of the Scottish Parliament itself, which would include the amendment of other Acts of the Scottish Parliament.
The keeping pace power provides that secondary legislation may be made only in areas that are devolved under the Scotland Act 1998 (the Scotland Act). The use of the keeping pace power is also expressly limited in certain circumstances, in that the Bill prohibits its use for the imposition or increase of tax, the creation of certain criminal offences, or for the amendment of certain statutes such as the Scotland Act or the Equality Act 2010.
A ten-year time limit applies to the keeping pace power from the date it comes into force. The Bill provides that the Scottish Ministers may (with the approval of the Scottish Parliament) extend the ten-year time limit by periods of up to five years.
How might the 'keeping pace' power be used?
The use of the power would be discretionary, and while the Scottish Government has stated its intention to maintain the alignment of Scots and EU law in certain areas, there is no requirement for the Scottish Ministers to do so.
It is currently unclear how the keeping pace power will be used if enacted in its current form. Ultimately the use of the power would likely depend on the outcome of negotiations between the UK and EU on their future relationship.
In the Policy Memorandum accompanying the Bill, the Scottish Government indicated that the power would be used to "ensure consistency and predictability", as well as being used specifically in relation to environmental law. In the context of political debates about the potential for regulatory standards to diverge among different areas of the UK following the end of the transition period, commentators have noted that the keeping pace power may be used to align regulatory standards between Scotland and the EU in areas of devolved competence.
Practically, the use of the power may also be affected by the UK Internal Market Bill, which is currently being considered by the House of Lords. It will arguably be more difficult for the Scottish Ministers to make and enforce regulations that would result in a divergence from the rest of the UK given the market principles contained in the UK Internal Market Bill.
We have posted about the UK Internal Market Bill and its effect on devolution, including in respect of the proposed keeping pace power, here.
The Bill in its current form does not require approval by the Scottish Parliament of regulations made under the keeping pace power except in certain specific circumstances including where regulations create or amend a power to legislate.
A degree of parliamentary oversight of regulations made under the keeping pace power is provided for in the Bill. The Scottish Ministers must lay explanatory statements before the Scottish Parliament alongside regulations, and the Scottish Ministers must also report annually to the Scottish Parliament on the use of the keeping pace power. However, the issue of parliamentary oversight of subordinate legislation remains one of the controversial elements of the Bill.
Commentators have also noted that the keeping pace power is a substantial 'Henry VIII' power, which (if passed) would allow the Scottish Ministers to make regulations that alter primary legislation without the requirement for the scrutiny or approval of the Scottish Parliament.
The Scottish Ministers' discretion to implement EU policy will vary depending on the type of EU law being considered. A distinction can be drawn between EU regulations (given that they have direct effect in EU member states) and EU directives, where member states have discretion as to how they are implemented in domestic law.
In the Policy Memorandum the Scottish Government has said that the Bill represents an "appropriate balance" between parliamentary scrutiny of subordinate legislation and ensuring sufficient flexibility to address the high volume of EU regulations and directives that are made. The report on the Bill by the Finance and Constitution Committee of the Parliament notes that the Cabinet Secretary for the Constitution, Europe and External Affairs has committed to work with the Scottish Parliament "to agree an appropriate and proportionate decision-making framework" for the use of the keeping pace power. While it is likely that the Bill will be subject to some amendment, it appears that the keeping pace power will form a key part of the Scottish Government's legislative powers following the end of the transition period.
We have published a checklist for businesses to assess how ready they are for the end of the Brexit transition period, which is available here.
For more information on the issues raised in this article, please contact Niall McLean, Robin Mackintosh or your usual Brodies contact.