"Whole of governance" approach needed for exiting EU

A "whole of governance" approach is needed following the introduction of the European Union (Withdrawal) Bill, the first of eight Brexit Bills, which sets out how EU-derived law will be incorporated into UK law following the repeal the 1972 European Communities Act on the day of exit.

Commenting on the European Union (Withdrawal) Bill, Law Society of Scotland President Graham Matthews said: “The introduction of the Bill represents a significant milestone in the route to exiting the European Union.

“The Bill raises important constitutional issues so, as it goes through parliament and the UK Government moves forward in its negotiations on how we leave the EU, it will be essential for the government to take a whole of governance approach, taking account of the devolved administrations and external organisations, including the professions, civic society and other representative groups to ensure that this important and complex Bill works effectively on royal assent."

The Law Society of Scotland has raised concerns about the potential use of Henry VIII powers – which allow the UK Government to make changes to existing legislation without the usual level of parliamentary scrutiny – in relation to the UK’s devolved administrations.

Matthews said: “We have raised specific concerns about the role of the Sewel Convention, which does not allow the UK Parliament to legislate for devolved matters without the consent of the devolved administration affected, but it does not apply to the exercise of secondary legislative powers.

“It’s our view that each piece of secondary legislation should be consulted upon and, given the compressed timescales, this should start as soon as possible rather than waiting until next spring when the Bill will have gone through the parliamentary processes at Westminster.

“We also think that once the process of identifying EU-derived UK law is complete, this body of law should be collated to form an easily identifiable and accessible collection. It would also be useful to have a definition of ‘domestic’ law given that we have three devolved administrations in addition to the UK Parliament.

“We’re pleased to see that the UK Government has taken on board our comment regarding clarity on the post-Brexit court structure, particularly regarding the role of the High Court of Justiciary, which would become the final court of appeal for criminal matters in Scotland, rather that the European Court of Justice.

“Of course questions remain on a range of other issues, such as EU citizens’ rights in the UK post-Brexit. The UK Government has recently published its paper on safeguarding EU citizens’ rights in the UK and those of UK citizens in the EU. We believe both groups should have access to information on how to enforce their rights. That’s why it is important that Scottish lawyers should still be able to provide advice for their clients whether here or in the EU and we intend to press for our members who are working in other EU jurisdictions to be able to retain their practice rights.

“In addition, if the Bill proceeds to cut off references to the Court of Justice of the European Union at the date of exit, there will need to be an adequate dispute resolution arrangement in place from that point. We suggest this should be a court composed of both UK and EU judges who will be able to deal with cases arising from EU-derived domestic law.

“We will continue to scrutinise the Bill and engage constructively as it progresses through the parliamentary stages."