Public policy highlights

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 www.lawscot.org.uk

Returning EU powers

The Constitutional Law Subcommittee issued a survey of the returning EU powers which intersect with devolved law.

In late 2017, the Cabinet Office published a list of 111 points where EU law intersects with devolved matters. This was supplemented in March 2018 by the UK Government’s Frameworks analysis relating to each devolved administration. The Society’s survey of the list adds further details of the implementing legislation for Scotland and, where appropriate, for the UK (or GB) and for England & Wales.

The areas highlighted are important, complex and often very technical, being highly regulated by EU and UK (including Scottish) legislation, as well as a number of administrative, non-statutory arrangements.

As the UK and Scottish Parliaments debate the destination of the returning powers, the Society hopes this survey will assist interested parties who want to know more about the powers, which include 24 policy areas which the UK Government has recently identified as requiring a UK legislative approach for a temporary period.

Brexit

The subcommittee also engaged with the Scottish Parliament throughout the passage of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. It suggested that the bill should proceed at a pace which would enable it to take account of any technical improvements which might be made to the EU (Withdrawal) Bill in the House of Lords; and that the Scottish Government should commence a programme of consultation on the draft subordinate legislation which will be required under the bill.

In addition, the subcommittee issued a briefing on clause 11 of the EU (Withdrawal) Bill, and submitted a response to the House of Lords EU Internal Market Subcommittee inquiry into the impact of Brexit on trade in non-financial services, stating that future free trade agreements ought to include commitments on trade in legal services, as the sector facilitates trade across all other sectors as well as being an important contributor to the UK economy.

Scottish Crown Estate Bill

The Rural Affairs and Constitutional Law Subcommittees submitted written evidence to Holyrood’s Environment, Climate Change & Land Reform Committee on the Scottish Crown Estate Bill.

While the bill gives powers to Scottish ministers, it is likely that Crown Estate Scotland will be the gatekeepers for further transactions in relation to the estate. It is beneficial that ministers retain powers to manage the estate should this become necessary. The evidence notes the possibility that having different managers may lead to well-tailored management of individual assets, as well as local community management, but also the risk of disjointed management due to different management strategies. Community organisations will require access to professional and planning advice, and it is important that assets and the estate generally are preserved for the future benefit of the community at large, with full transparency and accountability in relation to management.

Data Protection Bill

The Privacy and Immigration & Asylum Committees submitted written evidence to the Public Bill Committee. This emphasised the importance of ensuring continued data flows between the UK and EU following withdrawal. It would be preferable to have a specific agreement in place to cover exchange of personal data; however, if this is not achieved within the timescale of the withdrawal negotiations, an adequacy designation could provide a helpful interim solution.

The committees have serious concerns regarding the bill’s drafting, which contains such a high volume of references to the GDPR as to be almost incomprehensible – yet its format does not follow that of the GDPR, exacerbating the problems of interpretation.