Public Law

If you attended our client briefings in the week after the EU referendum you will have heard us mention an issue that is only now starting to attract more mainstream comment. That is the fact that Brexit has the potential to increase, in real terms, the powers of the Scottish Parliament and Government.

That is because there is a range of areas of law that are devolved – agriculture, fisheries and environmental regulation being the most obvious – but that are also highly regulated at an EU level. That EU regulation leaves relatively limited scope for Scottish policy choices in these devolved areas.

In the absence of EU regulation, that scope widens (assuming that the UK Parliament does not seek to ‘repatriate’ some of these powers). David Mundell, Secretary of State for Scotland, cast this aspect of Brexit in a positive light on Wednesday, while it also featured heavily in a lecture given by Jim Gallagher on Monday for Policy Scotland.

For a more systematic analysis of the range of areas in which these new powers might arise, see the paper written by Professor Alan Page for the Scottish Parliament’s Culture, Tourism, Europe and External Relations Committee here.

Of course, given the First Minister’s announcement today of new legislation to pave the way for a second independence referendum, the division between reserved and devolved areas of law may be a time limited one.

Christine O'Neill

Partner & Chairman at Brodies LLP
Christine is Chairman of Brodies LLP and leads our Public Law Litigation and Parliamentary team. She has considerable experience of parliamentary and public law work and has a special interest in administrative law, devolution and human rights. Christine has advised variety of clients on legislative procedure in the Scottish Parliament, particularly in relation to alcohol and tobacco regulation.
Christine O'Neill

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