Scottish Government

ANNEX C: COMPLETING A TRANSPOSITION NOTE

What is a transposition note?

Transposition Notes set out, in a structured way, how the main elements of a directive have been, or will be, transposed into Scots law.

Why do it?

Parliament, stakeholders and the Scottish Government all stand to benefit from the production of Transposition Notes:

• production of and availability of Transposition Notes should give those involved in the implementation of the directive a better understanding of the wider context in which their work sits.
• Transposition Notes can act as a check that, in the Scottish Government's opinion, all of the main elements of an obligation have been or will be addressed.
• Transposition Notes will increase the transparency of implementing legislation for both those producing it and those affected by it.

It is Scottish Government policy that transposition notes will be provided, where the effect on resources is not disproportionate, having regard to the benefit of the reader.

Working in a transparent way will reduce the risk of enforcement action as a result of a directive not being properly transposed. It is important to be as thorough as possible; a weak Transposition Note may itself be used as evidence against the UK in infraction cases where Scotland has failed to adequately transpose a directive.

How do I produce a Transposition Note?

Exactly how you produce a Transposition Note is up to you, so long as it meets all of the following requirements:

• It can be easily understood by an informed, but not expert, audience, such as those directly affected.

While the initial audience for the Transposition Note is the Scottish Parliament, it is possible that all those affected by the legislation, be they individuals, businesses or other organisations, will benefit from understanding the Transposition Note. It should therefore be produced in an accessible format and using language that can be understood by both Parliament and an informed, but not expert, audience. It should be as short, simple and jargon-free as possible.

• It clearly sets out how the Government has or will have transposed the main elements of all the relevant directive into Scots law.

The reader should be able to use the Transposition Note to determine quickly, easily and accurately how each of the main elements of every directive has or will be transposed into Scots law. If the Scottish legislation contains provisions for the transposition of more than one directive, the Transposition Note should illustrate how the main elements of all of these directives have been transposed. Where a decision is yet to be made regarding how to transpose the main element of a directive, this should also be made clear.

Where possible, direct cross-references between the articles of the directive and the specific clauses of the Scottish legislation should be made. One of the clearest methods is to set out this information in a table. Such a table can list the articles of the directive in one column and the Scottish legislation that transposes it in the corresponding row in the next column.

Some directives are complex, and production of a document that is accurate, short and easily understood will not always be easy. It is important to note that officials are not expected to reproduce and explain complicated directives, but merely give as much information as is necessary to explain how the main elements of the directive(s) has or will be transposed.

• It is made available to the Scottish Parliament alongside primary or secondary legislation giving effect to EU directives.
• It is made available to stakeholders.

You should ensure that other interested directorates receive copies as appropriate.

It is up to officials to decide how to divide up the work involved in producing a Transposition Note. In most cases it is likely that SGLD and policy officials will carry out the work in partnership.

Where more than one directorate is involved in the transposition of a directive, whoever produces a Transposition Note must ensure that it is cleared with all other interested parties.

In the event that the production of a Transposition Note is consider disproportionate, include the following line: " In the Scottish Government's view, the resources required to produce a Transposition Note are significantly greater than can be justified by the resulting added benefit to the reader."

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An example of a recent transposition note is available at Annex D. In the event of any queries, discuss further with SGLD.