Public policy highlights September 2020

The Society’s policy committees analyse and respond to proposed changes in the law. Key areas from the last few weeks are highlighted below, with a particular focus on Covid-19 and trade.  For more information see the research and policy section of our website.

Restoring the Courts post Covid-19

The Law Society wrote to the Scottish Parliament’s Justice Committee to set out its perspective on the courts and work required to address the current backlog of cases as a result of the Covid-19 pandemic.

The letter states that there is an urgent need for the Scottish Government to provide a clear plan for the justice system post-pandemic and to specify the changes to the courts and the justice system being proposed. It also highlights the need for good communication and co-operation by all those involved in the justice system to develop solutions for the courts both in the short and longer term.

In the letter, the President said that creative solutions would be needed to deal with the court business in as quick and efficient manner as possible and in our new, socially distanced environment.

The full letter with detailed appendix, including our response to the Scottish Court and Tribunal Service’s plan for recovery is available on our website.

Scottish Parliament Covid-19 Committee

We submitted a response to the Scottish Parliament's Covid-19 Committee’s consultation on legislation related to COVID-19, including SSI2020/249: The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020 and The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020.

Michael Clancy, our Director of Law Reform, gave evidence to the Covid-19 committee on 15 September. In response to a question from Deputy Convener, Monica Lennon MSP about whether we had assessed the impact on adults with incapacity for the duration of the emergency legislation so far, we submitted supplementary evidence in the form of a letter to the committee, in which we called for independent monitoring and review in situations where adults with incapacity may have been discharged from hospital to care homes or other placement during the emergency period.

UK Internal Market Bill

After publication of a white paper in July on plans to legislate for a UK internal market to ensure that cross-border business can continue unimpeded within the UK once the many powers previously exercised at EU level are returned to the UK Government and devolved administrations, the government published the UK Internal Market Bill on 9 September. The Bill attracted considerable attention because of the provisions which would be inconsistent or incompatible with international or other domestic law.

As well as make extensive comments on the content of the Bill as it will affect issues such as sale of goods intra-UK, mutual recognition of professional qualifications (and the exclusion of legal services from the scope of the Bill), the constitutional law sub-committee expressed the view that the Bill should, as a matter of principle, comply with public international law and that the rule of international law, pacta sunt servanda (agreements are to be kept) should be honoured, not least because adherence to the rule of law underpins our democracy and our society. You can read the full briefing on our website.

Trade Bill

The Bill completed committee stage in the House of Lords on 29 September. We sent a briefing ahead of the second reading on 8 September, we submitted evidence on the Bill to the Finance and Constitution Committee on 9 September 2020 and we submitted suggested amendments on 24 September.

Across our submissions, we express concern about the extensive scope of delegated ministerial powers under the bill and we urge there to be further consideration of how trade negotiations will be handled where they intersect with the powers of the Scottish Parliament and other devolved legislatures where any proposed trade agreement will affect an area of devolved competence.

UK-Australia and UK-New Zealand Trade Negotiations

The UK government has made agreeing comprehensive free trade agreements with Australia and New Zealand an early priority. The first round of trade negotiations between the UK and Australia, and the UK and New Zealand commenced on 29 June and 13 July 2020 respectively. These trade deals will be two of the earliest major trade agreements pursued by a post-Brexit UK, along with Japan and the US. The House of Lords EU International Agreements Sub-Committee is holding inquiries into these trade deals, focusing on the Government’s aims and objectives, the progress of negotiations, and the possible impacts of a final deal for people and businesses across the UK. You can read our responses to these inquiries on our website.