Our committees have been working on a number of Scottish Parliament and UK Parliamentary Bills and consultations including the EU (Withdrawal) Bill, the Scottish Law Commission’s Tenth Programme of Law Reform consultation and Brexit.
The Society has called for a ‘whole of governance’ approach following the introduction the European Union (Withdrawal) Bill. The introduction of the Bill represents a significant milestone in the route to exiting the European Union. The Bill raises important constitutional issues so it will be essential for the UK Government to take a whole of governance approach, taking account of the devolved administrations and external organisations to ensure that this important and complex Bill works effectively on Royal Assent.
At consultation stage the Constitutional Law Sub-Committee raised concerns about the potential use of Henry VIII powers in relation to the UK’s devolved administrations. We have raised specific concerns about the role of the Sewel Convention, which does not allow the UK Parliament to legislate for devolved matters without the consent of the devolved administration affected, but it does not apply to the exercise of secondary legislative powers.
We are pleased to see that the UK Government has taken on board our comment regarding clarity on the post-Brexit court structure, particularly regarding the role of the High Court of Justiciary which would become the final court of appeal for criminal matters in Scotland, rather that the European Court of Justice.
We will continue to scrutinise the Bill and engage constructively as it progresses through the parliamentary stages.
The Public Policy Committee responded to the Scottish Law Commission’s (SLC) consultation on their Tenth Programme of Law Reform. The Programme will set out the main areas of law which the SLC intend to review starting in 2018. The SLC will submit the Tenth Programme to Scottish Ministers for approval and laying before the Scottish Parliament.
The Committee previously asked all public policy sub-committees to examine their remits and the legislation which affects their areas of concern. Arising from that survey the sub-committees brought forward the following three issues for consideration by the SLC to be included in the Programme: reform of crofting law and consolidation of agricultural, private rented housing and environment law; consolidation of diligence legislation and consolidation of the law of diligence; and amendment of the Family (Scotland) Act 2006 Section 28.
The Constitutional and Immigration and Asylum Law Sub-Committees responded to the UK Government’s policy paper which sets out the government’s offer for EU citizens in the UK and UK nationals in the EU on their rights and status after the UK leaves the EU.
We agree with the assertion that until the UK withdraws from the EU, EU law will continue to apply and so the rights of EU citizens and their family members to live and work in the UK remain unchanged. We also agree that after the UK leaves the EU it will no longer be subject to EU law and that free movement rights and those rights dependent upon free movement will come to an end, subject to what is agreed with the EU in the Withdrawal Agreement. Subject to that Agreement the fact that EU law will no longer apply enables the UK Government to legislate in any way it thinks appropriate regarding EU citizens’ rights. We believe it should do so informed by concepts such as fairness, non-discrimination, avoidance of retrospective effect and consistency with the rule of law.
We note that the government expects equivalent guarantees to be put in place for UK residents in EU Member States. Although issues of reciprocity between the UK and the EU 27 and the EU Institutions are matters of political negotiation, it is however important that the agreed reciprocal position should be backed by legal rules that are enforceable across the EU and the UK.
The Society responded to the UK Parliament’s EU External Affairs Sub-Committee inquiry into the UK’s sanctions policy after Brexit. We also issued a briefing ahead of the House of Commons debate on Exiting the EU and Sanctions on 19 July 2017.
Reiterating comments made in our previous response to the UK Government’s consultation on sanctions we have recommended the consolidation of sanctions legislation and the introduction of a “Sanctions Code” covering areas of policy including: immigration; asset freezing; financial and trade restrictions; control in the transport sector; and implementation and enforcement powers. We believe that the consolidation of legislation would be practical and reduce some of the burden on legal and other advisers.
We have also recommended the consolidation and publication of guidance on the sanctions regime and the development of an official communications campaign to assist solicitors and other advisers in becoming familiar with the new UK sanctions regime. The Office of Financial Sanctions Implementation (OFSI) should also produce sector specific guidance covering the use of such issues as automated sanctions screening systems and legal professional privilege in the context of sanctions compliance.