"Whole of governance" approach needed to Brexit bill, Society claims

A "whole of governance" approach is needed as the legislation to underpin the UK's exit from the European Union is considered by Parliament, according to the Law Society of Scotland.

Yesterday saw the introduction of the European Union (Withdrawal) Bill, the first of eight Brexit Bills, which sets out how EU-derived law will become UK law following exit day, and grants wide powers to ministers to make regulations to achieve that. (Click here for report.) The Society has raised concerns over the potential use of these powers in relation to the devolved administrations.

The Society's President, Graham Matthews, commented following the bill's publication: “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."

On the so-called Henry VIII powers to make regulations, he noted: “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."

Mr Matthews suggested that once the process of identifying EU-derived UK law was complete, this body of law should be collated to form an easily identifiable and accessible collection. He also proposed that there should be a definition of "domestic" law, given that there are three devolved administrations in addition to the UK Parliament.

He welcomed one aspect of the bill: “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."

However he called for further scrutiny of other aspects: “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 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."