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/research-and-policy/  

Brexit: Withdrawal Agreement

The Brexit Policy Working Group issued a briefing on the Withdrawal Agreement and the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.

The group has taken a keen interest in the UK’s withdrawal from the EU and has tried to provide impartial commentary on legislation, parliamentary inquiries, and Government and EU papers, identifying priorities such as clarity in the law, clarity on the rights of UK and EU citizens, the role of the Scottish Parliament and Scottish ministers, and the distinctive aspects of the Scottish legal system.

It believes that the Withdrawal Agreement and Political Declaration formally satisfy the terms of both article 50 and the European Union (Withdrawal) Act 2018, noting that the Withdrawal Agreement is also subject to the process under the Constitutional Reform and Governance Act 2010.

Fisheries Bill

The Marine Law Subcommittee responded to the House of Commons Scottish Affairs Committee inquiry on the Fisheries Bill.

The bill creates common approaches to fisheries management between the UK Government and devolved administrations. The committee believes that strong collaboration is particularly significant, and welcomes the bill’s approach.

Following the UK’s exit from the EU, regulation of fishing in Scotland should fall within the ambit of the Marine (Scotland) Act 2010 and the Aquaculture and Fisheries (Scotland) Acts 2007 and 2013. In line with the planning envisaged by these Acts, it is important that fishing is not looked at in isolation but that an integrated view is taken. Leaving the Common Fisheries Policy creates an opportunity for fisheries to be looked at in detail alongside matters such as conservation, fossil fuel and renewable energy developments, aquaculture and navigation.

Competition in the digital economy

The Competition Law Subcommittee, together with the Consumer Law and Privacy Law subcommittees, responded to the Digital Competition Expert Panel’s consultation on the state of competition in the digital economy.

They welcome the UK Government’s recognition of the importance of ensuring that the competition law framework is fit for purpose in the context of regulating digital markets. The development of digital markets raises a number of interesting legal and policy issues, which attract increasing attention from the legal profession.

The committees identify a number of potential benefits and harms of the current trends in the evolution of those markets. An overarching consideration is how an individual market is defined or the relevant market determined in this context. If the market cannot itself be identified, this could lead to an inability to establish dominance and therefore to consider whether a particular transaction is anti-competitive.

Immigration detention inquiry

The Immigration & Asylum Law Subcommittee responded to the UK Parliament’s Joint Committee on Human Rights inquiry on immigration detention.

In its response to the United Nations’ Universal Periodic Review recommendation that the UK stop the practice of arresting migrants for unspecified periods, the UK Government gave two main justifications for resisting a time limit: that an individual’s detention remains under regular review by the Government, and that individuals can apply for release on immigration bail and can challenge the lawfulness of their detention in the courts. 

In relation to the second justification, the committee believes the Government overemphasises the role of individual detainees in applying for release and does not take sufficient account of the barriers to release. The Government should take more responsibility for facilitating release by time-limiting detention. International comparators demonstrate that alternatives are available.