Public policy highlights September 2021

The Society responded to the UK Government’s call for views on how it should engage with business and civil society groups on implementation of the Trade and Cooperation Agreement (TCA) through the Domestic Advisory Group (DAG) and the Civil Society Forum (CSF). On the subject of institutional framework, the Society’s response particularly welcomed the provision to make transparent the meetings of the proposed Partnerships Council and its Committees and noted the benefits of doing so.

In discussing the creation of DAGs comprising a representation of independent civil society organisations, the Society proposed that the Government take note of the role which the legal professions throughout the UK play in the administration of justice and the maintenance of the rule of law – two principles which it states are key to the implementation and functioning of the TCA. The Society considered that the DAGs should comprise members of the legal professions from each of the UK jurisdictions alongside other bodies, so that they produce a balanced representation from around the UK. The Society’s response suggested that the UK and EU should try to ensure that meetings of the DAGs take place more than once a year.

The response further encouraged the Government to apply the proposals made regarding the DAGs to the CSF, particularly regarding meeting more than once a year, stating that annual meetings will not suffice to create cohesion in the group nor to give pace to the forum’s work. When making appointments to the DAGs and the CSF, the Society proposed that the Government should follow the spirit of the Principles of Public Appointments contained in the Governance Code on Public Appointments (2016). The Society recommended that trade unions and charities be included in the membership of the forum.

With COP26, the UN Conference of the Parties, firmly on the horizon, the Society’s Working Group on COP26 & Climate Change organised a roundtable event on 30 September to consider the topic of COP26, climate change and human rights.

Attendees heard from keynote speakers on the recognition of the human right to a healthy environment in Scotland and how the Society might show leadership at COP26 in this area, and about the role of human rights in climate change litigation. A panel session discussed the implications of developments in relation to climate change and rights, considering the role of children and young people as ‘human rights defenders’; the implications for, and duties of, businesses particularly in the developing area of due diligence; and the interests of older persons in tackling the climate crisis.  

The input from speakers and the discussion in which attendees engaged highlighted the relevance of climate change to all aspects of society. The event touched on the role of education about climate change and the differing rights and interests across society and identified possible benefits of inter-generational learning. The discussion also highlighted the need to equip lawyers with skills for the future, recognising the developing trends in climate legislation and litigation.  

The Subsidy Control Bill was introduced into the House of Commons on 30 June 2021 by the Secretary of State for Business, Energy and Industrial Strategy (BEIS). This follows a consultation published by the Department for BEIS, entitled Subsidy Control: designing a new approach for the UK to which the Society submitted a response. The purpose of the Bill is to implement a domestic subsidy control regime in the United Kingdom now that we are not covered by European state aid rules; and provide a legal framework within which public authorities make subsidy decisions.

In the response, the Society expressed the view that a well-functioning subsidy control regime must be based on clear rules that provide legal certainty to businesses and granting authorities. As subsidy control has now been substantially returned to the UK and is a reserved matter, much of the autonomy that the Scottish government had when the UK was under the EU state aid regime has been transferred to the UK government. The Society expressed the hope that the UK government would take the opportunity to consult fully with the devolved legislatures and administrations and other interests based in each of the UK jurisdictions on the development and implementation of the regime; and also that the flexibility is built in to ensure that different local, regional and national markets within the UK are recognised and  that local authorities are able to address their own priorities, while respecting the relevant subsidy rules and principles.

See all our work on this Bill.

The Society responded to the Scottish Government’s call for views on the draft aims and principles of an independent public inquiry into the handling of the coronavirus (COVID-19) pandemic.

The Society’s response welcomed steps to establish a public inquiry for Scotland, whilst highlighting the potential challenges of delineating the scope of Scottish and UK-wide inquiries and calling for consideration to be given to how matters of inter-government co-operation could be included within the terms of reference.

The response also highlighted particular opportunities for lessons to be learned around the impact of the pandemic in care homes and prisons, including deaths in both settings, and called for the inquiry to have particular regard to the impact of the handling of the pandemic on vulnerable and marginalised groups.

The Society’s response welcomed the indication that Scottish Ministers will expect the inquiry to adopt a human rights based approach, and highlighted the impact of the pandemic on the human rights of individuals. The response also highlighted that any recommendations must be produced timeously in order that lessons can be implemented, and that the inquiry must be appropriately resourced to fulfill its terms of reference.

Finally, the response reiterated the Society’s recommendation for a review of the law relating to health emergencies.