Guidance for policy officials: implementing EU obligations

Part 1: The Role of the Scottish Government in implementing EU obligations

Legislative competence to implement EU obligations

1. Whilst international relations, including relations with the European Union and its institutions, are not within the legislative competence of the Scottish Parliament ^[1] , the function of implementing EU obligations of the UK which are exercisable by UK Government Ministers under section 2(2) of the European Communities Act 1972, are exercisable in devolved areas by Scottish Ministers by virtue of section 53 of the Scotland Act 1998.

2. UK Government Ministers, however, retain the power to implement EU obligations in devolved areas in Scotland under section 57(1) of the Scotland Act 1998.

Liaising with the UK Government

3. The Memorandum of Understanding (" MoU") on Devolution ^[2] sets out the underlying principles for relations between the UK Government and the Devolved Administrations and covers the co-ordination of international relations, including relations with the EU institutions.

4. Paragraphs B4.17 - B4.21 of the Concordat on Co-ordination of EU Policy (Annex B to the MoU) set out the underlying principles governing the implementation of EU obligations by the UK Government and the Devolved Administrations. Policy officials with responsibility for implementing EU obligations in devolved areas should be familiar with these principles, some of which are summarised below:

• It is the responsibility of the lead Whitehall Department to formally notify the Scottish Government, at official level, of any new EU obligation which concerns devolved matters and for which it will be the responsibility of the Scottish Government to implement in Scotland.
• Whitehall Departments are to liaise closely with the Scottish Government about the implementation by UK legislation of EU obligations in reserved areas , particularly where these could touch on areas which fall within the responsibility of the devolved administrations.
• For matters within devolved competence, it is for the Scottish Government to consider, in bilateral consultation with the lead Whitehall Department (and other Departments and the other Devolved Administrations if appropriate) how EU obligations should be implemented - including whether the Scottish Government should implement separately or opt for a UK-wide implementation.
• Where any discretionary provision or derogation is provided, and the Scottish Government wishes to exercise that discretion in Scotland, the Scottish Government should consult the lead Whitehall Department if there are wider UK policy implications .

5. It is, therefore, essential that all policy officials in the Scottish Government who have responsibility for implementing EU obligations know the identity of the main contact in their counterpart Whitehall Department and maintain good working relations. Nonetheless, policy officials should take the initiative and keep themselves abreast of developments in EU obligations.

Informing the Scottish Parliament

6. The Scottish Parliament may enact legislation to implement EU obligations in areas which are within its legislative competence. The Parliament also scrutinises subordinate legislation made or proposed by the Scottish Ministers which contains provision to implement EU obligations in Scotland. The Parliament's subject-matter committees also take a close interest in EU legislation coming forward in their areas.

7. In addition, the Europe and External Relations Committee (" EERC") has a role in examining cross-cutting EU issues and the Scottish Government's overall handling of the implementation of EU obligations.

8. The Scottish Ministers with portfolio responsibility for the EU (the Cabinet Secretary for Culture, Europe and External Affairs and the Minister for Europe and International Development) are regularly, requested to report to the EERC on the status of the Scottish Government's implementation of EU obligations. They do so on the basis of a briefing provided by the European Relations Division. It is therefore essential that when a policy official is aware of an EU obligation affecting a devolved area which requires to be implemented, that they notify the European Relations Division and keep it up to date on the status of the implementing measure.

The role of the European Relations Division

9. The European Relations Division in the Scottish Government oversees the implementation of EU obligations across the Scottish Government.

10. Its responsibilities include:

• Liaising closely with the UK Cabinet Office over the implementation of EU obligations affecting devolved areas.
• Monitoring the EU Official Journal on a regular basis and passing on information on to policy teams regarding the publication of new Directives.
• Providing advice and support on the implementation of EU obligations.
• Reporting to the Scottish Parliament on a regular basis on the implementation of EU obligations in devolved areas.
• Formally notifying the UK Government and the European Commission of measures adopted by the Scottish Government to implement EU obligations.

11. It is essential that you ensure that any developments regarding the implementation of EU obligations are communicated to the European Relations Division. In particular, once you have transposed EU obligations, you must always notify the European Relations Division, who will in turn notify the European Commission. Failure to notify the Commission will result in an automatic infraction. For more information on notification, please refer to paragraphs 87-91 of this guidance.

12. For more information on the European Relations Division and the wider work that we do, visit www.gov.scot/topics/international/europe and read the Action Plan on European Engagement.