The implementation of European Community Law in Scotland post-devolution

Lead Research Organisation: University of Dundee
Department Name: Law

Abstract

A key objective of devolution was to develop 'Scottish solutions to Scottish problems'. This research will examine the tension between the need to legislate locally for Scotland and the need for the UK to comply with European Community (Community) Law. The research will explore the division of power between the Scottish and UK Institutions in practice by examining the extent to which Community environmental law is being implemented in different ways in Scotland and in England and Wales post-devolution. These differences relate to legislative form, timing and content, including the extent to which Community requirements are fully met or exceeded.
 
Description The study involved a review of the procedures being used to implement EC environmental law in Scotland post-devolution

- whether by primary or secondary legislation and by Scottish, Welsh or UK Institutions - and the extent of substantive

differences in the resulting law across Great Britain. (Obj. 1-3) It then examined the reasons for the choices that had been

made.

The legislative review found that there is a high volume of UK/GB regulations implementing EC environmental Directives

for Scotland (12 +1 mixed/32) and Wales (27/32), which can be justified under the devolution settlement. There are 19

instances where Scotland produced separate legislation to transpose EC environmental rules and five occasions where

Wales acted separately. The study found that the decision to transpose separately is distinct from the decision to

transpose identically and the majority of the laws transposing EC measures are identical across the UK. Legislation

produced by the UK institutions contains no regional variation hence any Scottish or Welsh solutions must emanate from

the devolved institutions themselves. Only one of the five Welsh regulations contains provisions substantively different

from their English counterparts, whereas a third of the separate Scottish legislation does so. "Substantive" differences go

beyond inconsequential phrasing or those necessary due to legal or institutional differences between jurisdictions.

Transposing legislation in Scotland (primary or secondary) and Wales also receives more detailed scrutiny than where

transposition is by regulations passed at Westminster.

Semi-structured interviews with key personnel in the relevant administrations and agencies were used to explore the

reasons for the pattern that we identified and to trace changes in the behaviour as the devolution settlement has matured

(New Obj. 5). The interviews explored the relationships and processes involved in deciding who legislates, how and by

whom these decisions are made, the factors and presumptions influencing them and their consequences (Obj.1-4).

The study revealed that while the devolution settlements set presumptions as to who should legislate the position is not

rigid. Compared to Wales, Scotland is clearly more willing to legislate both separately and differently. This is predictable

as Scotland has more legislative power to do so, is better resourced, has a separate legal system and regulator from

England and is more used to acting separately. Most of the mechanisms for determining the implementation process are

informal and have evolved incrementally over the transition period, relying on co-operation, existing relationships and the

mutual respect that comes from the unified civil service. As a result, the process for determining which administration

should legislate and the content of that legislation lacks transparency and accountability.

The study concludes that while the informal and co-operative approach has to date worked this is unlikely to continue. Coordination

and co-operation will inevitably become more difficult over time. Already, even the slightest differences in

legislation are having cumulative and knock on effects and the laws in England, Wales and Scotland are incrementally

drifting apart. Moreover, the devolved administrations are more confident about legislating separately. London and the

devolved administrations no longer share the same political colour so informal processes are more difficult and the

likelihood of dispute higher. The research recommends that the Memorandum of Understanding and Concordats need to

be revisited and that more transparent and formal processes for consultation, representation and dispute resolution are

either resurrected or introduced both at UK level and within the devolved administrations.

The research has led to 4 conference papers, at least 3 academic articles, two professional articles and contributions to

two major inquiries on governance in Scotland.

If there are any additional achievements that do not clearly relate to your aims and objectives, please indicate these

below. You may, for example, wish to provide evidence of intangible achievements that could not have been anticipated

when you commenced the research programme. If you have identified such achievements under the 'Changes' section,

there is no need to repeat the information here.



Importance - To date very little research has provided any quantitative analysis of outcomes related to devolution. This

research provides the missing quantitative analysis of actual legislative outcomes needed to measure the impact of

devolution on the implementation of EC environmental law. More specifically, its analysis of this legislation reveals the

extent of the differences in the implementing legislation across GB and the rationales behind these differences. The

empirical work reveals how decisions about implementation such as who should legislate, legislative form and content are

actually made and the nature of the relationships between and among the central and devolved institutions both in GB

and in Brussels. The research also provides evidence into how the priorities and pressures on the devolved and central

administrations impact on their approach to the implementation of EC environmental law. These pressures and priorities

include political agendas, resource constraints such as staffing, expertise and time, the legislative timetable, language

obligations, differing legal approaches to statutory interpretation, the better regulation agenda including gold plating, the

impact of regulations on regulators, businesses and trade as well as local or regional concerns.

Environmental Law - The research provides valuable evidence into how EC environmental obligations are transposed in

to UK domestic law. By examining the differences in both form and substance, it has revealed the extent of divergence

between the environmental laws for Scotland, England and Wales and the likelihood of further divergence in GB post

devolution.
Exploitation Route In December 2007, the team produced written evidence for the European and External Relations Committee of the

Scottish Parliament in relation to its inquiry into the transposition of EU law in Scotland. Ms Ross also met with the Clerk

of that Committee in December 2007, and the findings from the legislative review of the project are widely cited in the

Committee's report. (see European and External Relations Committee, Report on an inquiry into the transposition of EU

directives 1st Report, 2008 (Session 3), SP Paper 89).

In April 2008, the Commission on Scottish Devolution (the Calman Commission) established by the Scottish Parliament

with the support of the UK Parliament, began its review of the provisions of the Scotland Act 1998. The Commission is to

recommend changes to the present constitutional arrangements that would enable the Scottish Parliament to better serve

the people of Scotland. In October 2008, Ms. Ross and Prof. Reid participated in a consultation workshop hosted by the

Commission. We were each in separate roundtable discussions. During the day we found ourselves using the findings to

support anecdotal evidence from other participants. Following the event, the Clerk of the Commission requested copies

of the project's findings.

EUR-LEX is the official EU Law portal, providing direct free access to European Union law including the Official Journals,

treaties, legislation in force, proposed legislation, cases, parliamentary questions etc. EUR-LEX was in the process of

developing their advanced search facility during the summer and autumn of 2006. The search facility did not do what we

needed it to do. Ms Nash worked very closely with the people at EUR-LEX who agreed that this was a gap and we

assisted in testing the advanced search engine as it was developed. We now find the end product to be very useful and

we believe that our active engagement assisted in the development process.

The United Kingdom Environmental Law Association has invited the team to produce a short article for lawyers and other

professionals in its electronic journal e-law. A similar paper was produced in the Scots Law Times for a more generalist

audience of the Scottish legal profession.
Sectors Environment
 
Description Can multi-level governance deliver environmental justice? A study of the implementation of EC environmental law post-devolution in Scotland, 
Form Of Engagement Activity Scientific meeting (conference/symposium etc.)
Part Of Official Scheme? Yes
Type Of Presentation paper presentation
Geographic Reach National
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact Information taken from Final Report

Annual Conference University of Kent
Year(s) Of Engagement Activity 2007
 
Description House of Commons EFRA Committee - oral evidence on Outcome of the Farming Regulation Task Force 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? Yes
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact In June 2011, I gave evidence to the Environment, Food and Rural Affairs Committee of the House of Commons in connection with its inquiry into the Outcome of the Farming Regulation Task Force. I was asked many questions

The Committee's report refers to my evidence on EU and UK law on the implementation and enforcement of EU directives by member states; the means of influencing the content of EU directives; the effect of and means of avoiding gold-plating, double banking and regulatory creep and on the EU's own efforts in reducing administrative burdens on industries. (see Tenth Report 2010-2011 HC 1266)
Year(s) Of Engagement Activity 2011
 
Description Ms. Ross and Prof. Reid participated in a consultation workshop hosted by the Commission for Scottish Devolution. 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? Yes
Geographic Reach National
Primary Audience Policymakers/politicians
Results and Impact Commission used findings from our AHRC project in its First Report into the Future of Scottish Devolution (published December 2008, see para 7.80).



In February 2009, we responded to the Commission's consultation on its first report.

Commission used findings from our AHRC project in its First Report into the Future of Scottish Devolution (published December 2008, see para 7.80).
Year(s) Of Engagement Activity 2008
 
Description Producing a real difference? The transposition of Community environmental directives in post devolution Scotland and Wales, 7 
Form Of Engagement Activity Scientific meeting (conference/symposium etc.)
Part Of Official Scheme? Yes
Type Of Presentation paper presentation
Geographic Reach International
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact Information taken from Final Report

Annual Conference, University of Durham September 13, 2007
Year(s) Of Engagement Activity 2007
 
Description Putting a Kilt on the Transposition of EC Environmental Legislation: Does Devolution Provide a Truly Scottish Solution, 13th International Sustainable Development Conference, University of Mälarden, Västerås. 
Form Of Engagement Activity Scientific meeting (conference/symposium etc.)
Part Of Official Scheme? No
Type Of Presentation paper presentation
Geographic Reach International
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact Information taken from Final Report

13th International Sustainable Development Conference
Year(s) Of Engagement Activity 2007
 
Description So who does implement EU environmental directives in Great Britain post devolution and why does it matter, 
Form Of Engagement Activity Scientific meeting (conference/symposium etc.)
Part Of Official Scheme? Yes
Type Of Presentation paper presentation
Geographic Reach National
Primary Audience Other academic audiences (collaborators, peers etc.)
Results and Impact Information taken from Final Report

Significant discussion followed
Year(s) Of Engagement Activity 2008