Legislating for a Post-Brexit Scotland: Scottish Parliamentary Scrutiny of UK Statutory Instruments on Retained EU Law

Abstract

The UK formally left the European Union (EU) on 31 January 2020, and entered a transition period until 31 December 2020 (“IP Completion Day”). Thereafter, EU law was no longer binding on the UK as an international source of law, and was replaced by a domestic equivalent, known as “retained EU law”. One of the questions which arose prior to IP Completion Day was how to correct retained EU law in advance of it taking effect, so that it would operate effectively and avoid a so-called “cliff-edge scenario”. Most of these corrections were made using delegated legislation by the UK Government. This was typically done with the consent of the devolved administrations where retained EU law included policy areas within the devolved competences of Scotland, Wales and Northern Ireland. In Scotland, new processes were introduced to provide the Scottish Parliament with an opportunity to approve such consent being given by the Scottish Government. The purpose of this article is to provide new analysis of the impact of this process and its significance for Scots law and Scottish parliamentary scrutiny, as well as to consider the extent to which the challenges observed with that process have been addressed by the successor process which has been in place since IP Completion Day.