Public policy highlights December 2018

Our Brexit Policy Working Group issued a briefing on the Withdrawal Agreement and the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.

We have taken a keen interest in the UK’s withdrawal from the EU and have tried to provide impartial commentary on legislation, parliamentary inquiries, and papers produced by the EU Commission and the Scottish Parliament and Scottish Government. Throughout the process we have identified priorities such as clarity in the law, clarity on the rights of EU citizens in the UK and UK citizens in the EU, the role of Scottish Parliament and Scottish Ministers, and acknowledgement of the distinctive aspects of the Scottish legal system and legal professions.

We believe that the Withdrawal Agreement and the Political Declaration formally satisfies the terms of both Article 50 and the European Union (Withdrawal) Act 2018, and that the process of ratification under Article 50 and section 13 may proceed. We note that the Withdrawal Agreement is also subject to the process under the Constitutional Reform and Governance Act 2010.

See our full response.

Our Marine Law Sub-Committee responded to the House of Commons' Scottish Affairs Committee inquiry on the Fisheries Bill.

The Bill creates common approaches to fisheries management between the UK Government and devolved administrations, which are known as ‘Fisheries Administrations’. We believe that strong collaboration between the Department for Energy, Food and Rural Affairs (DEFRA) and the devolved administrations is particularly significant. We welcome the collaborative approach taken by the Bill.

Following the UK’s exit from the EU, regulation of fishing in Scotland should fall within the ambit of the Marine (Scotland) Act 2010 and the Aquaculture and Fisheries (Scotland) Acts 2007 and 2013. In line with the marine planning envisaged by these Acts, it is important that fishing is not looked at in isolation but that an integrated view is taken. Leaving the Common Fisheries Policy creates an opportunity for fisheries to be looked at in detail alongside matters such as conservation, fossil fuel and renewable energy developments, aquaculture, and navigation. This will help to ensure that the system of marine planning envisaged under the Acts is comprehensive.

See our full response.

Our Competition Law Sub-Committee, together with our Consumer Law and Privacy Law sub-committees, responded to the Digital Competition Expert Panel’s consultation on the state of competition in the digital economy.

We welcome the UK Government’s recognition of the importance of ensuring that the competition law framework is fit for purpose in the context of regulating digital markets. The development of digital markets raises a number of interesting legal and policy issues, which attract increasing interest from the legal profession. We have identified a number of potential benefits and harms of the current trends in the evolution of those markets and our thoughts are set out in our response.

An overarching consideration is how an individual market is defined or how the relevant market is determined in this context. If the market cannot itself be identified, this could lead to an inability to establish dominance, relevant to considerations of whether a particular transaction is anti-competitive.

See our full response.

Our Immigration and Asylum Law Sub-Committee responded to the UK Parliament's Joint Committee on Human Rights’ inquiry on immigration detention.

In its response to the United Nation’s Universal Periodic Review recommendation that the UK stop the practice of arresting migrants for unspecified periods, the UK Government gave two main justifications for resisting a time limit. The first justification was that an individual’s detention remains under regular review by the government, and the second was that individuals can apply for release on immigration bail and can challenge the lawfulness of their detention in the courts.

In relation to the second justification, we believe that the government’s approach over-emphasises the role of individual detainees in applying for release and does not take sufficient account of the barriers to release. We think that the government should take more responsibility for facilitating release by time-limiting detention, and international comparators demonstrate that alternatives are available.

See our full response.