Law Society of Scotland calls for ‘whole of governance’ approach to EU withdrawal

Law Society of Scotland president Graham Matthews - Image credit: Law Society of Scotland

The Law Society of Scotland has called on the UK Government to take a “whole of governance” approach to EU withdrawal legislation, working with devolved administrations and other organisations to ensure EU law being brought into UK law works effectively.

The call follows the introduction the European Union (Withdrawal) Bill, also known as the repeal bill, which was published this week.

The repeal bill sets out how EU-derived law will be incorporated into UK law following the repeal of the 1972 European Communities Act on the day of exit from the EU.

Commenting on the 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 also 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.

Matthews also raised questions about citizens’ rights and dispute resolution arrangements post Brexit.

He continued: “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 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 arrangements 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."