Brexit Statutory Instruments: Identifying the challenges

The European Union (Withdrawal) Act 2018 provides legislative continuity after Brexit by transforming EU law from a body of international law into a body of UK domestic law, known collectively as ‘retained EU law’, from 11pm on Implementation Period (IP) Completion Day, 31 December 2020. However, this retained EU law had to be amended to allow it to work effectively at the domestic level. In relation to Scottish devolved matters, these changes have either been made by the UK Government through Statutory Instruments laid at the UK Parliament with the consent of the Scottish Government (UK Exit SIs), or by the Scottish Government through Scottish Statutory Instruments (Exit SSIs) laid in the Scottish Parliament.

A new process was introduced to enable the Scottish Parliament to approve the Scottish Government giving its consent to the UK Government making UK Exit SIs on devolved issues. This was introduced by an agreement between the Scottish Government and the Scottish Parliament referred to as Protocol 1, which ran from September 2018 until IP Completion Day on 31 December 2020. This Protocol 1 process was replaced by an amended process introduced under Protocol 2, which has been in effect since 1 January 2021.

This briefing paper is the third in a series of three briefing papers on Brexit Statutory Instruments produced as part of a Scottish Parliament Academic Fellowship undertaken with the Scottish Parliament Information Centre (SPICe) to explain and analyse the implementation of the Protocol 1 process. The purpose of these papers is to help inform the implementation of Protocol 2, and any other future processes by which scrutiny of UK SIs on devolved matters will be undertaken.

The first paper already published in this series outlined the processes by which retained EU law in areas of devolved competence was amended in the Scottish Parliament and the UK Parliament, including the Protocol 1 process. The second briefing paper in this series already examined: the implementation of Protocol 1, the impact of UK Exit SIs on the devolution settlement, and who will set the future policy direction in Scotland in devolved areas.

This third briefing paper highlights some of the challenges encountered in the implementation of Protocol 1 which, it is hoped, will assist the committees, their support staff and MSPs in future scrutiny exercises under Protocol 2. It examines seven challenges which can be identified with this process:

It is not the purpose of this paper to make recommendations as to how these challenges might be overcome. It is recognised that the nature of the Protocol 1 process and the wider context in which it has operated may mean that addressing all of these challenges may not be possible.

These papers also recognise that both the Scottish Government and the Scottish Parliament had to respond to a situation that was not of their making or choosing. They have had to engage in the exceptionally complex task of correcting deficiencies in retained EU law on devolved matters. This process involved coordination between multiple governments and legislative bodies, but was initiated and led by the UK Government. The scale of the task was unprecedented, had to be performed in advance of Exit Day and other deadlines which transpired to be moveable, and had to incorporate changes in EU law during this time.