Law reform roundup
Recent public policy work of the Society's committees, including EU (Withdrawal) Bill; SLC Tenth Programme of Law reform; EU rights of residence; Brexit sanctions 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 see lawscot.org.uk
EU (Withdrawal) Bill
The Society has called for a “whole of governance” approach to the European Union (Withdrawal) Bill. It raises important constitutional issues, so it will be essential for the UK Government to adopt an approach taking account of the devolved administrations and external organisations to ensure that this important and complex bill works effectively on Royal Assent.
At consultation stage the Constitutional Law Subcommittee raised concerns about the potential use of Henry VIII powers in relation to the UK’s devolved administrations, and specifically about the role of the Sewel convention, which does not apply to the exercise of secondary legislative powers.
It is pleased to see the bill clarify the post-Brexit court structure, particularly regarding the role of the High Court of Justiciary as the final court of appeal for criminal matters in Scotland. It will continue to scrutinise the bill as it progresses.
Tenth Programme of Law Reform
The Public Policy Committee responded to the Scottish Law Commission’s consultation on its Tenth Programme of Law Reform, which will set out the main areas of law the SLC intends to review from 2018.
The committee previously asked all public policy subcommittees to examine their remits and the legislation affecting their own areas. This resulted in three issues being put to the SLC for inclusion in the programme: reform of crofting law and consolidation of agricultural, private rented housing and environment law; consolidation of diligence legislation and the law of diligence; and amendment of the Family (Scotland) Act 2006, s 28.
EU rights of residence
The Constitutional Law and Immigration & Asylum Law Subcommittees responded to the policy paper setting out the UK Government’s offer for EU citizens in the UK and UK nationals in the EU on their rights and status after Brexit.
Subject to what is agreed with the EU in the withdrawal agreement, the fact that EU law will no longer apply enables the UK Government to legislate in any way it thinks appropriate regarding EU citizens’ rights. It should do so informed by concepts such as fairness, non-discrimination, avoidance of retrospective effect and consistency with the rule of law.
It was noted that the Government expects equivalent guarantees to be put in place for UK residents in EU member states. Although issues of reciprocity are matters of political negotiation, it is important that the agreed reciprocal position should be backed by legal rules enforceable across the EU and the UK.
Brexit sanctions policy
The Society responded to the UK Parliament’s EU External Affairs Subcommittee inquiry into the UK’s sanctions policy after Brexit. It also issued a briefing ahead of the House of Commons debate on 19 July.
Reiterating previous comments, it recommended the consolidation of sanctions legislation and the introduction of a Sanctions Code covering areas of policy including immigration; asset freezing; financial and trade restrictions; control in the transport sector; and implementation and enforcement powers. This would be practical and reduce some of the burden on legal and other advisers.
It also recommended the consolidation and publication of guidance on the sanctions regime and an official communications campaign to assist familiarity with the new UK regime. The Office of Financial Sanctions Implementation (OFSI) should also produce sector-specific guidance covering such issues as legal professional privilege.