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Public policy highlights

15 January 18

Recent work of the Society's policy committees, including Brexit and human rights; Brexit: reciprocal healthcare; integrated environmental authorisation framework; access to elections; Budget

The Society’s policy committees have had a busy month analysing and responding to proposed changes in the law. Key areas are highlighted below. For more information see the Research and Policy section of the Society's website. 

Brexit and human rights

The Constitutional Law Committee responded to the UK Parliament’s Joint Select Committee on Human Rights inquiry into the European Union (Withdrawal) Bill, suggesting that the UK Government reconsider the decision not to include the Charter of Fundamental Rights as retained EU law which would form part of domestic law from exit day. Our domestic courts would find its terms helpful when determining the validity, meaning and effect of retained EU law. It would also be helpful to the Government when identifying what fundamental rights or principles it considers are retained in domestic law and to what extent they are “retained general principles of EU law” in terms of clause 6(7) of the bill. 

The committee also expressed deep concerns about the potential for erosion of human rights and the creation of difficulties for UK courts in interpreting EU-derived UK law.

Brexit: reciprocal healthcare

The Health & Medical Law Committee responded to the House of Lords EU Home Affairs Subcommittee inquiry on the reciprocal healthcare implications of Brexit. Reciprocal and mutually beneficial arrangements for health care coverage and maintaining cross-border healthcare after Brexit should be a priority for negotiators. It remains unclear what will happen to existing arrangements after we leave. We should seek to provide reassurance for UK citizens currently living in Europe and EU citizens resident in the UK.

Integrated authorisation framework

The Environmental Law Committee responded to the Scottish Government and Scottish Environment Protection Agency (SEPA) consultation on the draft Environmental Authorisations (Scotland) Regulations 2018. It welcomes SEPA’s objectives of simplifying the existing authorisation framework and ensuring consistency across regulation. However, it is concerned that the regulations and accompanying guidance go too far in simplifying at the expense of legal certainty, and in giving SEPA an extremely wide discretion throughout the regime.

It is also important that uniformity does not stifle creativity and that the authorisation regime continues to allow Scottish businesses to lead, or at least keep pace with, the wider international community while also ensuring robust environmental protection. It would further be helpful to have some information as to how SEPA and the Government intend to “future-proof” the proposals against the potential impact of the Brexit negotiations.

Access to elections

The Mental Health & Disability Committee responded to the Cabinet Office seeking views on how people with disabilities experience registering to vote and voting. The response focuses on known problems relating to people with perceived or actual mental capacity issues. Section 73 of the Electoral Administration Act 2006 makes it clear that mental capacity is not a requirement for exercising the right to vote. This was seen as a progressive reform, but changes to the law around voter registration, continuing misconceptions about the law, and discriminatory attitudes towards people with cognitive impairments, mean that the practical reality does not reflect its intention.

Scotland’s budget

In anticipation of the Scottish Government’s proposed budget, the Tax Law Committee submitted comments relating to devolved taxes. Specific comments concerned the Scottish rate of income tax and possible lack of awareness and understanding of Scottish taxpayer status. Communication with taxpayers will become even more important if thresholds and rates diverge more substantially between Scotland and the rest of the UK, or new bands are created.

Further LBTT issues need urgent attention, including amendments to allow LBTT group relief where share pledges are in place. In addition, the committee would like to see amendments to remove the LBTT charge on the in specie transfer of properties between pension funds.

The Policy team can be contacted on any of the matters above by email:, or on Twitter: @lawscot

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