Part 3: Transposing EU Directives
Publication of new Directives
32. From playing a role in the negotiation and formulation of an EU Directive which concerns devolved, policy teams should be aware when it is likely that a new Directive will be published in the EU Official Journal. Although the lead Whitehall Department will be expected to notify the Scottish Government of any new EU Directive which concerns devolved matters and which it will be the responsibility of the Scottish Government to implement in Scotland  , you should strive to keep yourself updated on forthcoming developments of EU legislation in their areas.
33. In addition, the European Relations Division will monitor the Official Journal of the EU on a regular basis and will pass information on to policy teams regarding the publication of new Directives affecting your policy areas where possible.
Understanding the provisions of the Directive and the areas of law affected
34. When faced with a new Directive, the first step is for you to familiarise yourself with the provisions of the Directive in order to understand its objectives and consider the ways in which these objectives can be achieved in Scotland.
35. In most cases, there will already be domestic legislation applying in the area, and it is important for the lead policy team to know and understand this existing framework before considering what changes must be made to transpose the objectives of the Directive.
Planning the Transposition of a Directive
36. Even though a Directive may not require to be transposed immediately (depending on the transposition deadline specified in the Directive) you will need to allow sufficient time to thoroughly consider all the relevant policy implications in order to decide how the Scottish Government will transpose the Directive.
37. You may also find it helpful to attend a transposition working group in Brussels, a useful way to tap into the thoughts of other Member States and sub-national administrations. Check the website of the appropriate Directorate-General of the Commission for details of such opportunities, and contact the Scottish Government's Office in Brussels for advice.
Approach to Transposition
38. After carefully evaluating the objectives of the Directive at hand and what this means for Scotland, you should now decide how best to transpose its provisions into Scots law.
Consider what is the best approach for Scotland
39. As Directives provide flexibility as to the manner in which they can be transposed, the Scottish Government is not obliged to transpose a Directive in a devolved area in the same way as might be adopted in another part of the UK by the UK Government or one of the other Devolved Administrations, or by any of the other Member States. The paramount consideration is, therefore, considering how the Directive can best be transposed in Scotland.
40. Although the Scottish Government is free to adopt a different approach to transposing a Directive, it is useful to see what approaches are being adopted by the UK Government, the other Devolved Administrations and some of the other Member States.
41. It is likely that the lead UK Government Department will have drafted transposing legislation, and you may be able to transpose in Scotland more efficiently by drawing on such a draft as a guide for a separate Scottish instrument. However, always take into account that the UK Government's approach may not necessarily be the best one for Scotland.
42. In any case, it is essential that you keep in close contact with your counterparts in the UK Government and other devolved administrations to ensure you are aware of their approach to transposition and they are of yours.
Who Transposes - the Scottish or UK Government?
43. If it is considered that it would be more effective or expedient for some provisions of a Directive (falling within devolved competence) to be transposed by means of UK-wide legislation, rather than by separate Scottish legislation, then UK Government Ministers could be invited, under section 57(1) of the Scotland Act 1998, to take forward the necessary transposing provision for Scotland using section 2(2) of the European Communities Act 1972.
44. However, where the subject-matter of the Directive falls largely within a devolved area, there is a strong presumption in favour of transposing measures being taken forward by the Scottish Government by separate Scottish legislation.
45. Nonetheless, in certain circumstances, it may be more appropriate for some provisions of a Directive (which fall only party within devolved competence) to be transposed for the whole of the UK by the UK Government. This could occur, for example, where it is desirable to confer a single set of powers on a Scottish public authority to enforce the requirements of a Directive (or a Regulation) but the subject-matter of those requirements is partly devolved and partly reserved.
Issues to consider
46. In deciding whether it would more appropriate for the transposition of a Directive affecting a devolved area to be taken forward by the UK Government, you should consider the following matters:
- Would a separate form of transposition allow the Scottish Government to adopt a better form of regulation which would support sustainable economic growth?
- Would a UK Government transposition lead to a better outcome for Scotland?
- Is it a good use of resources for the Scottish Government to transpose in a separate fashion?
- Does the Directive impact on both devolved and reserved responsibilities in Scotland?
- If a Directive impacts on both devolved and reserved responsibilities in Scotland, would a separate form of transposition cause disproportionate difficulties for persons affected?
- If the Directive impacts on local government, what are the views of representative bodies, including the Convention of Scottish Local Authorities (" COSLA")?
- What are the views of Scottish stakeholders with an interest?
- Is there a preference for a UK regulatory framework rather than two separate sets of identical rules?
- What would be the views of the Scottish Ministers and the Scottish Parliament of allowing the UK Government to legislate in an area within their responsibility?
- Are there specific issues in Scotland that would suggest a separate form of transposition would better address the objectives of the Directive?
- Are the other Devolved Administrations in favour of a UK-wide transposition?
- Is the subject-matter of the Directive already regulated on a UK-wide basis and are there good reasons for continuing this?
47. In all cases, you should consider which approach will lead to a better outcome for Scotland . Where there is a doubt about the precise legal route to take, submit the options to the portfolio Minister explaining the advantages and risks attached to each approach.
Practical steps to take before agreeing to a UK-wide transposition
48. Before agreeing to a UK-wide transposition, you should:
- Consult with your solicitors in the Legal Directorate;
- Consult with the European Relations Division ( EUObligations@gov.scot);
- Consult appropriately with stakeholders likely to be affected by the transposition of the Directive;
- Consult with the lead UK Government Department and the other Devolved Administrations; and
- Seek clearance from the Scottish Minister with portfolio responsibility and the Cabinet Secretary for Culture, Europe and External Affairs.
49. If it has been agreed that a Directive will be transposed on a UK-wide basis, you should:
- Advise the European Relations Division ( EUObligations@gov.scot).
- Ensure the relevant portfolio Minister writes to the Convenor of the Scottish Parliament Committee within whose subject-matter the Directive falls as well as the Convenor of the European and External Relations Committee.
Throughout the transposition period
- Ensure the lead UK Government Department consults the Scottish Government and our stakeholders on the transposing measures.
- Seek to influence the substance of the transposing measures so that they address any Scottish issues.
- Monitor the progress of the transposing measures being taken forward by the lead UK Government Department and advise the European Relations Division.
- Notify the European Relations Division when the transposing measures are made and when they are due to come into force.
Method of Transposition
50. Where it is decided that the Scottish Government will transpose a Directive in a devolved area, lead policy teams must consider the method by which the Directive should be transposed. The three main methods of transposition are through the legislative measures of a Scottish Statutory Instrument (" SSI") or an Act of the Scottish Parliament or through administrative measures.
51. Section 2(2) of the European Communities Act 1972 contains a specific power for Scottish Ministers to transpose a Directive falling within a devolved area by SSI. The vast majority of Directives are transposed in this fashion but it is also open to the Scottish Government to transpose a Directive through the enactment of primary legislation - an Act of the Scottish Parliament.
52. Do not automatically assume, however, that legislation will be required: administrative measures may suffice where the existing domestic legal framework already complies with the objectives of the Directive. Provided the Directive is fully transposed, innovative solutions may be considered to ensure that the Scottish Government is fulfilling its EU obligations while placing minimal burden on those affected.
53. Further guidance on the procedures in relation to Scottish Bills and Scottish Statutory Instruments can be found in the Scottish Government Bill Handbook and the Guidance on Scottish Statutory Instruments respectively.
54. SGLD will also be able to guide you on the type of instrument to use and the parliamentary procedure which will apply.
Instructing a Scottish Statutory Instrument to transpose a Directive
55. Where you are taking forward the transposition of a Directive through an SSI, you should follow the general SSI Guidance for policy officials on instructing an SSI.
56. For an SSI transposing a Directive, consultation with stakeholders will be key, particularly where the SSI may include provisions which go beyond the minimum requirements of the Directive. These should be widely consulted on - setting out a clear rationale as to why this approach has been taken. Proper engagement with stakeholders will help to ensure that any concerns about over or under-implementation are dealt with at an early stage.
57. Where the transposition of a Directive will confer powers or responsibilities on local government or will have implications for local government, you should consult and engage with representative bodies of local authorities as appropriate, including COSLA, at an early stage, and consider how their views can be incorporated into the planning and drafting of the transposing measure.
58. You should also consider whether the transposition may affect the Scottish islands and rural communities in a particular way and ensure that the appropriate bodies are consulted.
59. You should carefully read the Directive to see if it gives Member States any discretion to deviate from its requirements. Any such discretion is commonly referred to as a 'derogation'. In particular, the Directive might say that a Member State may impose standards that are stricter than those specified in the Directive, or it might say particular activities may be exempted from its scope (or from particular Articles). You should assess whether it would be desirable to make use of any such permitted derogations from the requirements of the Directive.
60. Where appropriate, you should consult with your counterparts in the UK Government over the use of derogations - particularly those which require the approval of the European Commission.
61. If you decide that the best way to transpose a Directive would be to transpose its provisions by means of new standalone legislation, you will also need to consider whether any consequential modifications are needed to existing regimes. You might instead decide to modify an existing regime so that the regime (as modified) also delivers the new requirements of the Directive. However, if that existing regime catches some activities that do not fall within the scope of the Directive, you should assess whether or not it would be desirable to also impose the same new requirements (equivalent to those in the Directive) on those activities as well.
62. If any proposed implementing legislation will contain provision which imposes a technical standard (for example, water pipes need to be [X] mm wide or fishing nets need to be made of a particular type of rope), then a draft of the instrument which contains those provisions must be communicated to the European Commission in advance. This enables other Member States and the Commission to raise concerns as to whether the proposed measure is a potential barrier to trade.
63. This notification must take place whilst the legislation is still in the draft stages. Once notified, the draft legislation cannot be brought into force until a minimum period of 3 months (or, in some cases, 6 months) has expired ("the minimum standstill period"). It should also be noted that, in some circumstances, the minimum standstill period could be extended to 12 or 18 months. If a technical standard has not been notified in accordance with the Technical Standards Directive, it will be unenforceable, so it is vital that a draft of the proposed legislation is communicated to the Commission in good time, so that the relevant standstill period (extended or otherwise) has expired, before a final version of the legislation is passed, made, or otherwise laid in draft before the Scottish Parliament.
64. You should consult with SGLD if unsure whether the provisions of any proposed implementing legislation contains a technical standard.
65. The Department for Business, Innovation & Skills holds the portal for notifying a draft of any instrument containing a technical standard to the European Commission and can be contacted at email@example.com. Further information can be found on the BIS website and in the BIS Guidance for policy officials.
66. Please contact the European Relations Division for further assistance if required.
67. You must also consider what impact assessments should be carried out on their proposed legislation transposing a Directive. Further details are set out in the general SSI Guidance for policy officials on instructing an SSI but, in particular, you should be aware of the need to carry out, where required, a Business and Regulatory Impact Assessment and an Equality Impact Assessment.
Business and Regulatory Impact Assessment
68. All policy changes, whether derived from EU legislation or otherwise, which may have an impact upon business, charities or the voluntary sector must be accompanied by a Business and Regulatory Impact Assessment (" BRIA"). The BRIA will help you think through and analyse the costs and benefits of the proposed manner of the transposing legislation.
69. The BRIA should be undertaken as early as possible in the transposition process so that it informs the transposing instrument.
Equality Impact Assessment
70. Equality Impact Assessments (" EQIAs") help to ensure that:
- the needs of people with 'protected characteristics' (race, sex, disability, age, sexual orientation, gender reassignment, religion or belief) are proactively addressed where possible;
- barriers faced by people in equality groups (for example in relation to accessing opportunities and services) are broken down; and
- equality groups are not likely to be adversely affected by policies.
71. EQIAs also help to ensure that Scottish Government complies with its legal duty to assess the impact of applying new policy policies against the need to:
- eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
72. If required, an EQIA should be undertaken as early as possible in the transposition process so that it informs the transposing instrument.
73. For more information, you should email the Equality Unit at MainstreamingEquality@gov.scot.
74. The Scottish Government is committed to producing better regulation and reducing unnecessary burdens on business, and actively pursues policies which promote this.
75. You should pay attention to the five principles of the Scottish Government's policy on Better Regulation and ensure that transposing legislation is: Proportionate, Consistent, Accountable, Transparent and Targeted.
76. Further guidance is available at http://www.gov.scot/Topics/Business-Industry/support/better-regulation and please contact the Better Regulation team at BetterRegulation@gov.scot for more information.
Consultation with the UK Government and other Devolved Administrations
77. In some cases, it might be desirable for provisions which transpose aspects of a Directive in devolved areas to be coordinated with provisions which transpose other aspects of the Directive (whether in reserved areas or in other parts of the UK).
78. You should therefore maintain contact with the lead UK Government Department once they become aware of the new Directive.
79. The UK Government will likely to be willing to share a draft of its transposing instrument with the other Devolved Administrations and this should help inform how the Scottish Government goes about the transposition.
80. When transposing an EU Directive, you should be cautious of going beyond the requirements of text and imposing more burdens and restrictions than necessary. However, sometimes it may be preferable to modify an existing domestic regime to give effect to the provisions of a Directive and, in doing so, EU obligations might potentially be imposed more widely than is required by the Directive. Advice should be sought from SGLD in relation to any such proposal.
81. You should always consider what is most appropriate to achieve the best outcome for Scotland.
82. Where it has been decided that a provision of a Directive is to be transposed for the first time by means of an SSI, you should immediately enter the details on the SSI Tracker. The SSI Tracker is a tool for managing secondary legislation and monitoring its progress. It is vital that the entry specifies each Directive being transposed and the transposition deadline as this information is relied on by the European Relations Division for reporting to Ministers and the Parliament on progress and notifying the Commission (see paragraphs 87-91 below).
84. You should consider carefully with stakeholders whether guidance for those affected by the transposing instrument will be necessary to help explain the consequences of the transposing instrument.
85. The purpose of the guidance should be to provide clear 'signposts' to enable those affected to follow the terms and understand the purpose behind the legislation. When drafting guidance, be careful to distinguish between statutory requirements and what is considered to be best practice, as confusion about the legal status of requirements in guidance can create additional burdens and costs.
86. It may be helpful, when taking a different approach to the UK, to clearly set out the differences from the UK approach, for the benefit of businesses which operate UK-wide.