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Law reform roundup

16 October 17

Recent public policy work of the Society's committees, including EU Withdrawal Bill; gender representation; Islands (Scotland) Bill; Brexit and health matters; Brexit and competition policy

The Society’s committees have been working on a number of Scottish and UK Parliament bills and consultations. Key areas are highlighted below. For more information visit the Society's website.

EU (Withdrawal) Bill

The Constitutional Law Committee issued a briefing ahead of the EU (Withdrawal) Bill second reading in the House of Commons.

The bill is complex, difficult to interpret and lacking in clarity. The committee also highlighted concerns about the potential for the erosion of human rights in the UK (through the exclusion of the Charter of Fundamental Rights from domestic law) and the impact of withdrawal on the devolved administrations, through the removal of legislative competence of the Scottish Parliament in relation to retained EU law.

Given the tight timescales, the UK Government should be generous and permissive with suggestions to clarify the bill or make improvements. There should be early consultation on the draft secondary legislation that will be required, to ensure sufficient time for scrutiny.

Gender representation

The Equalities Law Committee responded to the call for evidence on the Gender Representation on Public Boards (Scotland) Bill.

Steps should be taken to dispel any perception, for both the public and women candidates, that appointments are made only to fulfil a quota and not on merit. A transparent application process should be required for positions on boards to ensure confidence that women appointed are appropriately qualified.

The committee remains of the view that voluntary targets are unlikely to be an effective method of achieving gender balance on boards. Further, in its present form the bill does not expressly state that the duties can be enforced in court with appropriate remedy, and provide penalties for non-compliance.

Islands (Scotland) Bill

The Rural Affairs, Marine and Constitutional Law Committees responded to the call for evidence on the Islands (Scotland) Bill.

The Scottish Government’s objective for the bill is understood as “ensuring that there is a sustained focus across Government and the public sector to meet the needs of island communities both now and in the future”. The committee feels it is difficult to determine how all the changes envisaged would work in practice. It will only be possible to identify detailed objectives when the regulations are available.

Further, at a general level many of the issues identified in the policy memorandum – “geographic remoteness, declining populations, transport and digital connections” – are relevant to rural communities more generally. And concerns have been identified with drafting, particularly in key definitions.

Brexit and health matters

The Health & Medical Law Committee published its analysis of the impact that Brexit may have on healthcare and public health in the UK, with particular focus on Scotland.

The committee believes it would be a positive step for the Scottish Parliament to carry out an inquiry into the potential impact on the Scottish health and social care systems. Given the differences in NHS Scotland and our social care systems from those elsewhere in the UK, this would be a valuable exercise. It also states that reciprocal and mutually beneficial arrangements for health care coverage and maintaining cross-border healthcare after Brexit should be a priority. Reassurance is needed for UK citizens currently living in Europe and EU citizens resident in the UK.

Brexit and competition policy

The Competition Law Committee responded to the House of Lords EU Internal Market Subcommittee’s inquiry into the impact of Brexit on UK competition policy.

Its response called for consistency with the current regime on withdrawal. This would minimise compliance costs and offer legal certainty, particularly when businesses may have to make many changes in light of the withdrawal arrangement and any subsequent trading relationship. It is imperative that transitional arrangements are put in place to ensure legal certainty as to the applicable competition and state aid rules throughout the withdrawal process.

Securing continued recognition of legal privilege for communications between UK qualified lawyers and their internal market clients should be a priority in withdrawal negotiations. The UK Government should also seek to ensure that UK lawyers retain rights of audience in the EU/EEA courts. These issues tie in with the importance of maintaining cooperation in terms of recognition and enforcement of judgments.

The Policy team can be contacted on any of the matters above at policy@lawscot.org.uk; Twitter: @lawscot

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