An unprecedented period of legal change lies ahead, following the bills to give effect to the process of leaving the European Union, according to the Law Society of Scotland.
The Society was commenting on yesterday's Queen's Speech, which promised eight separate bills devoted to implementing Brexit, out of 27 to be brought before the Westminster Parliament over the two years to be covered by the new parliamentary session.
In addition to the main bill repealing the European Communities Act 1972, separate bills will cover the customs regime; a framework for trade policy; immigration status of EU nationals; fisheries; agriculture; a nuclear safeguards regime; and a framework for implementing international sanctions.
The prospect of a standoff between Westminster and Holyrood was raised after the Prime Minister conceded that a legislative consent motion might be required in the Scottish Parliament in relation to aspects of the legislation. Although the UK Supreme Court ruled in the Miller appeal (on triggering the article 50 notice to leave the EU) that this process was a matter of convention and not enforceable in law, the UK Government requires the cooperation of the devolved administrations in making Brexit happen.
Other measures announced with a UK scope will support the development of automated and electric vehicles, provide for licensing of commercial space flight, implement previously announced national insurance changes, update the ATOL financial protection scheme for holidays, and update the data protection regime.
Focusing on the proposed Brexit legislation, Law Society of Scotland President Graham Matthews commented: “We need to be sure there is clarity on how current EU law is incorporated into UK domestic law and we have recommended that once the process of identifying EU derived UK law is complete, this body of law should be collated to form an easily identifiable and accessible collection. It would also be useful to have a definition of ‘domestic’ law given that we have three devolved administrations in addition to the UK Parliament.
“In our recent response to the UK Government’s Great Repeal Bill white paper, we raised specific concerns about the use of Henry VIII powers, their proper scrutiny and the relationship of the exercise of those powers with devolution – Henry VIII powers enable the Government to repeal or amend a bill after it has become an Act of Parliament, without further parliamentary scrutiny. The Sewel convention, which does not allow the UK Parliament to legislate for devolved matters without the consent of the devolved administration affected, does not apply to the exercise of secondary legislative powers and the white paper has given no indication of the extent to which secondary legislation will be consulted upon.
“As the UK Government moves forward in its negotiations on how we leave the EU, it will be essential to involve each of the devolved administrations. We have particular concerns as the Scotland Act 1998 embeds EU law into the fabric of Scottish devolution and think that each order should be consulted on and should also be accompanied by a financial memorandum and economic impact assessment."
Mr Matthews added: “There is an enormous amount of work required in a relatively short period of time during the negotiation period, and even once the negotiations are completed, the number of supporting Acts will lead to an unprecedented period of law reform and policy development across the UK in the years to come.
“Brexit has huge implications for everyone in the UK and in Europe. We are encouraged that both the UK Government and EU Council consider the rights of EU citizens living and working in the UK and UK citizens’ rights in the EU to be of high importance. This includes solicitors who work in a number of European countries as well as many EU nationals who work as solicitors here in Scotland. We will continue to press for our members to be able to practise and advise their clients wherever they are based."
He also warned that any new counter-terrorism proposals – the speech referred to a "review" of counter-terrorism strategy – "must not breach human rights law and any changes to human rights for terrorist suspects must conform to the rule of law and not put the UK in breach of its international obligations”.