Public Law

In the midst of seemingly endless Brexit controversies, one issue has dropped under the radar somewhat: the Scottish Parliament’s post-Brexit powers.

Readers will no doubt recall that the European Union (Withdrawal) Act was passed in June without the Scottish Parliament’s consent, prompting (and indeed following) conflict between the UK and Scottish Governments. We explained the issues at the time in a briefing, which is available here. A key objection was to the power the Act confers on the UK Government to make regulations prohibiting the various devolved legislatures from legislating post-Brexit in certain areas that are currently controlled by EU law (including important areas such as agriculture, fisheries, the environment and product standards), except to the extent they could already do so pre-Brexit. The purpose of these orders would be to ‘freeze’ the status quo while replacement UK-wide frameworks are negotiated. The UK Government initially published a list of 153 policy areas in which they considered EU and devolved competencies intersected across the three devolved nations. 24 areas were subsequently identified as needing legislative controls to protect the UK’s internal single market and avoid new barriers to intra-UK trade; a key issue for Scottish businesses trading or operating cross-border. But no freezing orders have yet been made. So what’s been going on?

In November the UK Government reported on progress made in Q3 of 2018 towards agreeing the desired UK-wide frameworks, including in policy workshops on various food law matters, agricultural support, fisheries, chemicals and public procurement. Other key areas being considered include environmental law and consumer protection. The report envisages “consistent approaches” to legislation in these areas, plus memorandums of understanding. As matters stand, the UK Government has stated that it does not anticipate making any freezing orders.

The Government has also given a political commitment that it will not normally ask the UK Parliament to approve freezing orders without the consent of the relevant devolved legislature (astute readers will notice that this mirrors the language of the Sewel convention, which was of course the source of the controversy relating to the passing of the Act itself). The UK Government has also made a commitment to not make legislative changes for England at Westminster where a freezing order prevents a devolved legislature doing the same.

If agreement cannot be reached in a particular area then the UK Government may feel obliged to protect the pre-Brexit status quo with a freezing order. However, the Scottish Government has said it will withdraw from framework discussions if any such orders are made. The political stakes are therefore high. While the framework report suggests progress at official level, it also confirms that proposals will soon be submitted to the UK and devolved governments. The suggestion is that this will be done in Q1 of 2019, with stakeholder consultation to follow. The politics of devolution may therefore soon spring back into the front rank of the disputes over Brexit.

Catriona Hepburn

Solicitor at Brodies LLP
Catriona qualified in to the Government, Regulation and Competition division in July 2018 following her traineeship with the firm. She worked with the Employment and Insurance and Risk Litigation teams before her finishing her traineeship within her current division. Catriona has experience providing advice across a wide range of public law and regulatory issues. She has also dealt with a variety of Sheriff Court and Court of Session actions.
Catriona Hepburn