'Ministers will make EU re-entry harder by not aligning with Brussels'

But ahead of the UK leaving the EU, the Scottish Government said that “where appropriate” it would like to see Scots law continue to align with Europe.

It brought in the landmark EU Continuity Act which includes a “keeping pace” power as one of the ways to achieve this goal. MSPs receive an annual report from the Government on updates on work on alignment.

The rationale behind the legislation was that EU standards offered the best protections in matters such as the environment, food standards and animal welfare, but also that keeping closely tied to Europe would allow for a swifter transition to the EU if Scotland became independent.

Member states must have their laws in alignment with the EU as a condition for joining the bloc.

However, a report commissioned by Holyrood’s Europe committee found hundreds of legal changes have been made in Brussels since Brexit in policy areas under devolved control. Yet ministers have not yet used the keeping pace power. 

Holyrood’s Europe committee asked a senior academic at Queen’s University Belfast (QUB) to gather evidence on what was happening in Europe to assess the extent to which Scotland was keeping in step.

The QUB study showed at least 599 changes relevant to devolved issues have been made to European legislation since December 2020.

“Since the end of the UK transition period, 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,” said the report by Dr Lisa Claire Whitten.

“While amendments made via EU implementing legislation are often very technical and have limited substantive policy impact, sometimes changes are significant for specific sectors and/or stakeholders subject to or affected by the relevant legislation.” 

Keeping pace
Ministers have said they are aligning with EU law in other ways, citing legislation to crack down on single-use plastics. They have also said they intend to use the keeping pace power to align Scottish water quality standards with EU changes. 

But Michael Keating, emeritus professor of politics at Aberdeen University and an adviser to the Europe committee, said there is no evidence of the Scottish Government taking any pro-active steps to align.

“The Scottish Government is committed to maintaining dynamic alignment with EU regulations but this commitment is rather ambivalent,” he said in a forthcoming paper. 

“There is an ambition dynamic alignment will be the default option to ensure a future independent Scotland is as close as possible to the acquis communautaire so as to facilitate EU membership.

“Yet this is qualified by consideration of whether any given EU regulation is appropriate. The first report on the use of this power states that it was not used.

“The second, in October 2022, states that it was considered on only two occasions. On one issue the Scottish Government decided not to align, using very similar reasoning to the UK Government’s decision on that issue (electric charging points at car parks in residential buildings). 

“On the second issue, it declared that it is still considering whether to align. Scottish ministers may use other powers, including primary legislation, to align but there is so far no evidence of that. 

“This does not seem to presage a broad strategy of alignment but rather a consideration of the merits of EU regulations in each case. There is not, as yet, a comprehensive system for monitoring EU regulations in order to decide whether to align.”

Asked by The Herald on Sunday that if there is more divergence between Scotland and the EU on laws whether it be harder for Scotland to become an EU member and whether Scottish ministers would risk making the process of rejoining harder if they don’t use the continuity act more to keep divergence, Professor Keating replied: “Yes and yes.”

He added: “Candidates for the EU have to meet the acquis communautaire, the body of EU law and regulation.”

His analysis was supported by other leading experts who are also concerned the Scottish Government is not using its powers under the EU Continuity Act to keep in step with EU legal changes.

EU developments
ANTHONY Salamone, a member of the Europa Institute at the University of Edinburgh, said minsters would need to spend more resources in monitoring EU legal developments in order to implement their alignment aims.

“The EU’s laws and policies are constantly evolving. To maintain some EU alignment, both the Scottish Government and the Scottish Parliament would have to significantly increase the resources they dedicate to monitoring the evolution of EU law and evaluating what measures to take in response,” said Salamone, a political scientist.

“Beyond its pro-EU political message, the Scottish Government has apparently not undertaken much proactive EU alignment to date.” 

He added: “In general, the greater Scotland’s divergence from the EU’s laws and policies, the greater the work that would be required for an independent Scotland to join the EU. Without proactive alignment, the default scenario is that Scotland and the rest of the UK diverge from the EU over time.”

Kirsty Hughes, the founder and director of the former think tank the Scottish Centre on European Relations (SCER), said: “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.”

Single currency
AS well as aligning with EU laws, Scotland would need to commit to adopting the single currency in order to become a EU member, though the European Commission told The Herald on Sunday last month that it could join the euro in its own timescale.

Post-Brexit, the Scottish Government faces a huge challenge in monitoring updates to EU laws as it no longer has representation in the European Parliament or through the UK in the commission.

It is unclear whether its office in Brussels has sufficient resources to keep abreast of the many changes.

There is also the prospect that divergence from EU laws will grow further under the UK Government’s Retained EU Law (Revocation and Reform) Bill, which aims to remove thousands of laws brought in over 47 years when the UK was a member of the bloc.

The Scottish Government is strongly opposed to the bill and wants Holyrood to withhold legislative consent to it.

A Scottish Government spokesman said: “The Scottish Government aims to align with EU legislation where it is possible and practical and in Scotland’s interests to do so. 
“Scottish ministers are prioritising alignment with the EU where this will maintain and advance standards that protect and enhance the wellbeing of the people of Scotland – for example, incorporating World Health Organisation standards for drinking water, or Scotland’s recent ban on certain single-use plastics. 

 “This proportionate and measured response means the Scottish Government is doing what it can to mitigate the damage of a Brexit Scotland didn’t vote for and minimise divergence with the EU.”