Public policy highlights April 2018

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.

See our full survey here

The Constitutional Law Committee engaged with the Scottish Parliament throughout the passage of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. We suggested that the Bill should proceed at a pace which will enable it to take account of the technical improvements which might take effect during the passage of the EU (Withdrawal) Bill through the House of Lords. We also suggested that the Scottish Government should commence a programme of consultation on the draft subordinate legislation which will be required under the Bill.

The Constitutional Law Committee also issued a briefing on Clause 11 of the EU (Withdrawal) Bill

We also submitted a response to the House of Lords EU Internal Market Sub-Committee inquiry into the impact of Brexit on trade in non-financial services. We believe future free trade agreements (FTAs) ought to include commitments on trade in legal services. The legal services sector facilitates trade across all other sectors as well as being an important contributor to the UK economy. This includes contract negotiations for the provision of goods or services and extends to advice on matters such as intellectual property protection.

Lawyers also play a key role in resolving disputes when problems arise. We support the ability of lawyers to provide advice on the law of any jurisdiction where they are authorised to practise in addition to international law. This ability should extend to representing clients with respect to international arbitration.

See all of our Brexit policy work

The Rural Affairs and Constitutional Law Committees submitted written evidence to the Scottish Parliament’s Environment, Climate Change and Land Reform Committee on the Scottish Crown Estate Bill.

While the terms of the Bill give powers to Scottish Ministers, we consider it likely that Crown Estate Scotland will be the gatekeepers for further transactions to take place in relation to the estate. It is beneficial that the Scottish Ministers retain powers to manage the estate should this become necessary.

We note that there is a possibility that having different managers may lead to well-tailored management of individual assets, as well as empowering communities to manage assets within their local area. This could be of benefit to the estate. We do, however, note that there is a possibility that having a number of different managers of Crown Estate assets could result in disjointed management due to different management strategies.

It must be recognised, however, that community organisations will require access to professional and planning advice to properly manage assets. It is important that assets and the Estate generally are preserved for the future benefit of the community at large.

There must continue to be full transparency and accountability in relation to management of the Estate.

See our full written evidence

The Privacy and Immigration and Asylum Committees submitted written evidence to the Public Bill Committee on the Data Protection Bill.

We emphasised the importance of ensuring continued data flows between the UK and the EU following withdrawal. We outlined our concerns about relying on an adequacy decision to ensure that data continued to be transferable between the UK and EU. We feel that it would be preferable to have a specific agreement in place to cover exchange of personal data between the UK and EU following withdrawal. However, if this is not achieved within the timescale of the withdrawal negotiations an adequacy designation could provide a helpful interim solution.

We have serious concerns regarding the drafting of the Bill, which contains such a high volume of references to the GDPR as to be almost incomprehensible. Furthermore, the format of the Bill does not follow that of the GDPR, thereby exacerbating the problems of interpreting the Bill while cross-referring to the text of the GDPR. We do not consider that the Bill is accessible even to lawyers who specialise in this area and therefore consider that it fails to offer the requisite clarity and accessibility.

See our full written evidence