Public Law

The recent temporary lull in parliamentary activity around Brexit allows us space to return to a topic we have briefed on previously: what powers will the UK’s devolved administrations have after the UK has left the EU?

As matters stand, there are a number of areas of law that are devolved to Scotland but which also are regulated by EU law – thereby placing limits on what the Scottish Government and Parliament can do in those areas. Because of that EU law influence, much of the law in these areas is similar or the same throughout the UK. Following Brexit the position will become a more complicated. In the absence of intervention, the removal of the need to comply with EU law would give the devolved nations greater flexibility in areas such as agriculture and the environment.

In an attempt to maintain regulatory consistency across the UK the European Union Withdrawal Act 2018 gave new powers to the UK Government to prevent the devolved administrations from exercising that new ‘flexibility’. Using secondary legislation, dubbed ‘freezing’ orders, the UK Government can prevent the legislatures and governments in Scotland, Wales and Northern Ireland from changing the law in these areas if doing so would involve modifying the EU law rules that are to be kept in force in Britain on exit day. The UK Government envisages that the common framework provided by EU law would be replaced by new UK wide common frameworks.

The 2018 Act requires the UK Government to publish quarterly reports explaining the steps taken by it using these powers. The reports also set out the progress made in establishing common frameworks. The first report was published in November and can be found here. Our blog at the time can be found here.

They published their second report, covering the period of 26 September to 25 December 2018, here and have now published a revised breakdown of areas of EU law that intersect with devolved areas of law here.

The Government had previously identified 153 areas of EU law that intersect with devolved competence. That has now been increased to 160. Of those, 63 have been noted as not requiring any further action to create a common framework. The number of areas that intersect with Scotland’s devolved powers in particular has increased from 107 to 111.

In addition to assessing whether there is a need for continued common ways of working, the UK Government is also carrying out an assessment of whether legislation is required to deliver common frameworks. There are now 78 (down from 82) areas that have been identified as requiring a common approach but not needing legislation.

The overall tone remains positive. The UK Government has not yet made any freezing orders and its second report notes that “significant joint progress has been made in relation to future common frameworks.”

The report also states that the devolved nations have undertaken not to create divergent policy in ways that would cut across future frameworks where it has been agreed that frameworks will be necessary or where there are ongoing discussions.

The report notes that key themes have been the need for robust arrangements for information sharing, decision-making and dispute resolution; as well as the important role of evidence, including in some cases, expert opinion and technical advice.

The report paints picture of cooperation between the UK Government and the devolved nations that appears to be working for the time being. That is not quite matched by corresponding communications from Holyrood. Our blog here presents the ‘Scottish’ perspective.

Catriona Hepburn

Solicitor at Brodies LLP
Catriona has experience providing advice across a wide range of public law and regulatory issues. She deals with a variety of Sheriff Court and Court of Session actions on regular basis.
Catriona Hepburn