Public policy highlights

The Society’s policy committees have had a busy month analysing and responding to proposed changes in the law. Key areas are highlighted below. For more information see www.lawscot.org.uk/research-and-policy/

Withdrawal Agreement

The Constitutional Law Subcommittee responded to the House of Commons Procedure Committee inquiry on the Withdrawal Agreement Bill.

It welcomes the UK Government’s commitment in the white paper Legislating for the Withdrawal Agreement to parliamentary scrutiny of the process of withdrawal from the EU, but notes a lack of reference to engagement with the devolved legislatures. It is likely that the devolved legislatures and administrations will have a vested interest in all legislation which implements the Withdrawal Agreement, and it is crucial that there is sufficient engagement to take their views into account so that we have a workable, certain body of law following withdrawal.

Trade relationships post-Brexit

The Trade Policy Working Group responded to four consultations from the Department for International Trade (DIT) on future trade relationships and negotiations. DIT was consulting on negotiations with New Zealand, Australia and the United States and asking for views on the UK potentially seeking to accede to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Trade agreements can be used to effect a wide range of changes in the relationship between states and regions. In many such agreements, provisions are a means to promote or reinforce the application of the rule of law. Trade negotiations should take into consideration the need to ensure minimum standards or norms, respect for the rule of law and the interests of justice, and access to justice.

The response emphasised the importance of recognising that Scotland is a distinct jurisdiction. This should be considered in pursuing trade agreements, including negotiations with the EU.

A whole of governance approach should be taken when considering trade negotiations. In the context of devolved competences this is particularly relevant where international agreements would bind domestic legislatures to effect changes to domestic law.

Fisheries Bill

The Society issued a briefing on the Fisheries Bill ahead of the second reading debate in the House of Commons on 21 November.

The bill creates common approaches to fisheries management between the UK Government and devolved administrations. The Society believes that strong collaboration between the Department for Energy, Food & Rural Affairs (DEFRA) and the devolved administrations is particularly significant, and welcomes the collaborative approach taken by the bill.

Following the UK’s exit from the EU, regulation of fishing in Scotland should fall within the ambit of the Marine (Scotland) Act 2010 and the Aquaculture and Fisheries (Scotland) Acts 2007 and 2013. In line with the marine planning envisaged by these Acts, it is important that fishing is not looked at in isolation but that an integrated view is taken. Leaving the Common Fisheries Policy creates an opportunity for fisheries to be looked at in detail alongside matters such as conservation, fossil fuel and renewable energy developments, aquaculture, and navigation. This will help to ensure that the system of marine planning envisaged under the Acts is comprehensive.

Transparency in landownership

The Property Law Committee and Property & Land Law Reform Subcommittee responded to the Scottish Government’s consultation on the draft regulations to establish a new Register of Persons Holding a Controlled Interest in Land.

The response notes concerns about the wide nature of the proposed duties and the impact on a potentially wide range of individuals and bodies. There appears to be no differentiation between, for example, a local sports club and a large commercial organisation, or between small family partnerships and major pension fund trusts.

There is a lack of comprehensive information about trust or partnership property available on public registers, and so there is no ability to produce a proper estimate of how many properties, or people, are likely to be affected by requirements of the regulations.

Further, it is crucial that the new register is properly and timeously maintained, and therefore vital that the Keeper has adequate resources to implement and maintain the register.