EU Withdrawal Bill risks legislative competence of Scottish Parliament

The Law Society of Scotland has raised a series of concerns in advance of the European Union (Withdrawal) Bill’s second reading at Westminster on Thursday, 7 September.

The Law Society has criticised the draft legislation as being complex, difficult to interpret and lacking in clarity. It has also highlighted concerns about the potential for the erosion of human rights in the UK and the impact of withdrawal on the devolved administrations.

Graham Matthews, President of the Law Society of Scotland, said: “Leaving the EU is arguably the biggest constitutional change to affect the UK since 1945. It will affect everyone living in the UK and undoubtedly will also have an impact on people living across the EU.

“As such, the bill is the most significant to come before the UK Parliament for many decades. While the aim to repeal the European Communities Act 1972 suggests its relative simplicity, it is in fact a very complex bill.

“Given the tight timescales involved, we think that MPs will have a difficult task in examining the bill and therefore the UK Government should be generous and permissive with suggestions to clarify or make improvements as the bill progresses. We have also called for early consultation on the draft secondary legislation that will be required as the bill goes through Parliament, to ensure there is sufficient time for scrutiny.”

The Law Society has highlighted concerns about the potential erosion of people’s rights as the EU Charter of Fundamental Rights will not be part of UK domestic law after withdrawal under the terms of the bill.

Mr Matthews said: “Ensuring that people can continue to exercise their rights once EU law is incorporated into domestic UK law is vital. We have particular concerns around plans to exclude the Charter of Fundamental Rights from domestic law. We believe the UK Government should reconsider this because of the possible erosion of human rights if it is removed. The Charter will only apply to EU law retained following the UK’s exit from the EU and it makes sense for it to remain so UK courts can interpret the retained EU law more easily.”

The Law Society has also raised concerns that the bill as drafted could remove legislative competence of the Scottish Parliament in relation to retained EU law.

Mr Matthews said: “We believe there needs to be a whole of governance approach to the UK withdrawal from the EU, which takes into account the devolved administrations and other key organisations and representative groups to ensure this complex bill works properly. The effect of the bill would be to remove the legislative competence of the Scottish Parliament in relation to any matter in retained EU law. This would be the case even if it related to areas of law not reserved to the UK under the Scotland Act, such as agriculture or fisheries.

“We have suggested a number of alternatives to the provisions in the bill for dealing with the complexities of retained EU law and the competence of the devolved jurisdictions, which we encourage MPs to consider.”

The Law Society of Scotland briefing summary for the second reading of the EU (Withdrawal) Bill is available to read on the website.European Union (Withdrawal) Bill.