If Scotland is to rejoin the EU, on its own or as part of the UK, it’s vital that its laws and regulations are aligned with those agreed in and managed by Brussels. The greater the regulatory divergence the bigger the obstacle to becoming a full member. UK ministers, who have no intention of ever rejoining, and Scottish ministers, who very much do, are acutely aware of this.
Yet there are alarm bells ringing that the Scottish Government and Holyrood are failing to keep up with the required pace for remaining aligned as promised with the EU Continuity Act – and this is before the much-feared and derided Retained EU Law (Revocation and Reform) Bill (REUL) becomes law. (You can read more about the end of the committee stage here.)
REUL, the brainchild of arch-Brexiteer Jacob Rees-Mogg and now in the hands of Grant Shapps, is due to reach its next stage in the Commons – Report and Third Reading – sometime in the new year. It is designed as a legislative bonfire of up to 4000 EU rules and regulations retained by the UK/Scotland and largely still in force – virtually all of which could be repealed by the end of 2023 under the bill’s now infamous sunset clause.
Prof Tobias Lock of Maynooth University sums up the Bill’s effect: “… the REUL Bill would automatically repeal much retained EU law currently in force by the end of 2023 (sunset clause); it would give governments (UK and devolved) far-reaching powers to exempt retained EU law from the sunset; and to restate or reproduce or replace it; it would end the special status (notably the supremacy) of retained EU law (though the Bill gives governments the power to reinstate it).”
In a briefing for the Human Rights Consortium Scotland, Prof Lock, formerly at Edinburgh University’s Europa Institute, explains that, while Scottish ministers have, unlike their Westminster counterparts, no powers to extend the sunset until 23 June 2026, they can replace as well as revoke relevant EU laws. But will they?
You can read what the Scottish Government says about the Bill here. It has recommended that the Scottish Parliament withholds its consent for the Bill but Westminster will more than likely ignore that. Angus Robertson, Cabinet Secretary for the Constitution, told MPs on December 8 the Bill “will wreak havoc across a swathe of sectors while it chips away at the increasingly fragile state of devolution in the United Kingdom. It is the [Scottish] Government’s view that it should be withdrawn immediately…” (Watch/listen here.)
Prof Lock agrees that the Bill is “problematic” for several reasons, including the fact that it will revoke almost all retained EU law in one swoop and, even though much EU retained law can be saved one way or another, there is the “inherent risk that some pieces of law will be overlooked and that regulatory gaps will emerge”. (His emphasis). What’s more, he adds, the UK Government is being given powers to make decisions in devolved areas without consent and Parliamentary oversight is very limited.
The Herald reports that, despite its good intentions, the Scottish Government is failing to keep up with hundreds of new laws made in Brussels since January 2021 (when Brexit finally took effect). Dr Lisa Claire Whitten of Queen’s University Belfast, in a report for the Scottish Parliament’s Constitution Committee, says that since the end of the transition period some divergence has occurred but of a technical nature and the policy implications so far are minimal. Even so, at least 559 acts of EU implementing law ” have been adopted which amend EU regulations, directives or decisions which were previously (fully or partially) within devolved competence in Scotland”. And ministers should “carry out a review to determine the scope of retained EU law in Scotland as soon as possible.” Given the sheer volume of laws and regulations in play it’s a huge task. And there’s only a year to enact it.
Our colleague Kirsty Hughes tells the Herald: “The Scottish Government seems to have chosen barely to align at all. And it does not have a comprehensive overview of where it could or should potentially align nor has it clearly explained how it chose the two laws it did choose to align to, given it hasn’t got an overview of all the potential areas of alignment.”
So, there’s a New Year resolution for Holyrood. Clearly, EMiS, its members and supporters, will also face a mammoth task in trying to keep pace with REUL and its implications in the 12 months ahead. We’ll try and be alert!