Law reform round up October 2017
Our committees have been working on a number of Scottish Parliament and UK Parliamentary Bills and consultations including the EU (Withdrawal) Bill, Islands (Scotland) Bill and the potential impacts of Brexit on health and competition matters.
The Constitutional Law Committee issued a briefing ahead of the EU (Withdrawal) Bill Second Reading in the House of Commons on 7 and 11 September.
We said that the draft legislation is complex, difficult to interpret and lacking in clarity. We have also highlighted concerns about the potential for the erosion of human rights in the UK and the impact of withdrawal on the devolved administrations. 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 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.
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. We have also raised concerns that the bill as drafted could remove legislative competence of the Scottish Parliament in relation to retained EU law.
The Equalities Law Committee responded to the Scottish Parliament’s Equalities and Human Rights Committee’s call for evidence on the Gender Representation on Public Boards (Scotland) Bill.
We believe that steps should be taken to dispel any perception, for both the public and the women candidates concerned, that appointments are made only to fulfil a quota and not on merit. We have suggested that a transparent application process should be required for positions on boards to ensure confidence, both from the public and from other members of the board that the women appointed are appropriately qualified for the position.
As stated in our previous responses on this subject, we feel that a weakness of the underpinning policy of this Bill is the voluntary nature of the quotas. We remain of the view that voluntary targets are unlikely to be an effective method of achieving gender balance on public boards. We also remain sceptical as to the effective impact of the Bill in its present form as it does not expressly state that the duties can be enforced in the court with appropriate remedy and provide penalties for non-compliance.
The Rural Affairs, Marine and Constitutional Law Committees responded to the Scottish Parliament’s Rural Economy and Connectivity Committee’s call for evidence on the Islands (Scotland) Bill.
We understand that the Scottish Government’s objective for the bill as a whole is “ensuring that there is a sustained focus across Government and the public sector to meet the needs of island communities both now and in the future”. We note the policy justification for the Bill but feel that it is difficult to determine how all of the changes envisaged would work in practice. We believe it will only be possible to identify detailed objectives when the regulations are available and being implemented.
We also note that at a general level many of the issues identified in the policy memorandum – “geographic remoteness, declining populations, transport and digital connections” – are relevant to rural communities more generally.
We have identified a number of concerns with drafting, in particular those set out in the key definitions at part 1 of the Bill which merit further consideration to ensure that the Bill provides the clarity and certainty required to ensure that the legislation can be properly implemented.
The Health and Medical Law Committee published its analysis of the impact that Brexit may have on healthcare and public health in the United Kingdom with particular focus on Scotland.
We believe that it would be a positive step for the Scottish Parliament to carry out an inquiry into the potential impact of Brexit on Scottish health and social care systems to help identify those issues which may need to be addressed. We know that healthcare is a priority for people and, given the differences in NHS Scotland and our social care systems from those operating elsewhere in the UK, we think this would be a valuable exercise to determine how Brexit may affect the health services provided for people living in Scotland.
We have also said that reciprocal and mutually beneficial arrangements for health care coverage and maintaining cross-border healthcare after Brexit should be a priority for negotiators. The existing reciprocal arrangements will continue in relation to the European Health Insurance Card for UK citizens living in EU states prior to the Brexit date. However it remains unclear as to what will happen after we leave. We believe that negotiations on this should be given priority to provide reassurance for UK citizens currently living in Europe and EU citizens resident in the UK.
The Competition Law Committee responded to the House of Lords EU Internal Market Sub-Committee’s inquiry into the impact of Brexit on UK competition policy.
We have called for consistency with the current regime upon withdrawal. We believe that this will succeed in terms of minimising compliance costs and offering businesses legal certainty, particularly when businesses may have to make many changes in light of the withdrawal arrangement and any subsequent trading relationship. We believe that it is imperative that transitional arrangements are put in place to ensure legal certainty as to the applicable competition and state aid rules throughout the withdrawal process and on a practical level to allow businesses and their advisers time to adjust to the post-Brexit relationship.
We are also concerned about the impact that Brexit may have on UK lawyers specialising in competition law. We consider that securing continued recognition of legal privilege for communications between UK qualified lawyers and their internal market clients should be a priority for the UK government in withdrawal negotiations. Furthermore we believe that the UK Government should seek to ensure that UK lawyers retain rights of audience in the EU/EEA courts following withdrawal. These professional practice issues tie in with the importance of maintaining cooperation in terms of recognition and enforcement of judgments which in turn enhances the attractiveness of the UK as a place to bring damages claims.
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