Our policy committees have had a busy month analysing and responding to proposed changes in the law. We do this to positively influence the creation of a fairer and more just society through our active engagement with the Scottish and United Kingdom Governments, Parliaments, wider stakeholders and our membership.
You can read more about some of the month's highlights below:
We have issued a survey of the returning EU powers which intersect with devolved law.
In late 2017, the Cabinet Office published a list of 111 points where EU Law intersects with devolved matters. This has been supplemented by the publication of the UK Government’s Frameworks analysis: breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland on 9 March 2018. The government’s analysis focuses on the EU legislation which applies in the devolved areas. In order to add further information to the debate, we offer a survey of the powers in the list, which includes details of the implementing legislation for Scotland and, where appropriate, for the UK (occasionally on a GB basis) and for England and Wales.
The areas highlighted are important, complex and often very technical. They comprise highly regulated areas of policy implemented by EU Directives, Regulations and Decisions and transposed by UK Acts and subordinate legislation, Scottish Acts and Scottish subordinate legislation; as well as a number of administrative, non-statutory arrangements.
As the UK Parliament comes to debate clause 11 of the European Union (Withdrawal) Bill and the Scottish Parliament debates the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, we hope that this survey will assist interested parties who want to know more about the returning powers, which include those 24 policy areas which the UK government have recently identified as requiring a UK legislative approach for a temporary period.
The Constitutional Law Committee responded to the UK Government’s policy paper outlining the position on cross-border civil judicial cooperation in the future partnership with the EU. Within the EU, there is an almost complete legal framework for choice of law, jurisdiction and recognition and enforcement of judgements in civil and commercial matters. This framework aims to facilitate the recognition and enforcement of judgements reached by member states' courts, to achieve free movement of judgements and rules for jurisdiction and choice of law, and to provide common rules of evidence and service of documents. All of these are important in cross-border matters and will continue to be relevant after the UK has left the EU.
We believe that the UK and EU will need to agree continued participation in the existing arrangements or develop alternative means of judicial cooperation across Europe. The UK could negotiate to include the Brussels rules on recognition and enforcement of judgements in civil and commercial matters in the post exit agreement with the EU. This could also include the Service of Documents and Taking of Evidence Regulations.
We also produced suggested amendments to the Taxation (Cross-border Trade) and Trade Bills ahead of report stage in the House of Commons.
The Rural Affairs Committee issued a briefing to all MSPs ahead of the stage 3 debate on the Forestry and Land Management (Scotland) on Thursday 1 March.
We noted that further action will be required in order to complete the devolution of forestry. Firstly, orders will be required under the Scotland Act 1998, for example to wind up the Forestry Commissioners as a cross-border public authority, and secondly, new organisational arrangements will be required in order to transfer the activities presently delivered by the Forestry Commissioners in Scotland to the Scottish Government.
We also noted the policy justifications of the Bill for improved accountability, transparency and policy alignment; modernisation; and more effective use of Scotland’s publicly-owned land. We also welcomed legislation capable of delivering on these objectives.
We are of the view that the public should have greater access to the benefits of publicly owned land, including the National Forest Estate, as well as information about that land. It is important that the public are able to benefit from the changes proposed in the Bill.
The Criminal Law Committee submitted written evidence to the Scottish Parliament's Justice Committee on the implications of the UK's exit from the European Union on policing and criminal justice in Scotland.
We believe that the key issues to be considered in relation to future agreement with the EU post-Brexit, include stability in the law for the public and those who are required to advise on such matters. The UK Government has urged the closest possible continued co-operation between the UK and EU which must be maintained and strengthened to deal with the issues that may arise in relation to policing and the criminal justice system. This is crucial when addressing terrorism and organised crime which pose continuing threats to the EU, the UK and Scotland.
We note that there will be an impact on Scotland post-withdrawal given its unique legal system. In discussing the scope of criminal justice, the Scottish legal profession; court structures and procedure; and prosecution and police force are all relevant. Significant questions will therefore arise as to how criminal justice, policing, law enforcement and security will be dealt with post exit.
The Planning Law Committee submitted written evidence to the Scottish Parliament’s Local Government and Communities Committee on the Planning (Scotland) Bill.
As with the Planning etc. (Scotland) Act 2006, the current Planning (Scotland) Bill takes the form of amending legislation. Throughout the Bill, there are multiple amendments to the same sections. As a result, we feel that the Bill is difficult to follow and we consider this to be contrary to the intention to involve the public in both the consultation and planning process.
The Bill is of a skeletal nature with much detail to be set out in regulations. This makes it difficult to understand the full impacts of what is proposed by the Bill. In key areas of the Bill, particularly the scope of the gatecheck provisions, the relationship between the National Planning Framework (NPF) and Local Development Plans (LDPs), and the structure of the proposed infrastructure levy, there is insufficient clarity on how the new system will operate. We believe that this lack of clarity may be a disincentive to investors and developments.