An important element of the UK’s preparations for Brexit is the ongoing debate about the proper distribution of powers between the UK Parliament and Government and the devolved administrations after Britain leaves the EU. The UK Government has powers derived from the European Union (Withdrawal) Act 2018 (the “EU Withdrawal Act”) to control law making in certain devolved areas where those areas are also (currently) regulated by EU law. Our blog here looks at the current state of play there in a bit more detail.

The reports from Westminster suggest that matters are progressing smoothly but activity north of the border suggests that Scottish Government is not entirely reassured. A letter from Cabinet Secretary for Government Business and Constitutional Relations, Mike Russell, to the Scottish Parliament’s Presiding Officer raises a number of issues relating to post-Brexit power sharing. The full letter can be found here.

The letter refers to the Supreme Court’s decision in relation to the Scottish Parliament’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the “Continuity Bill”). Our blog on that decision can be found here, with a more in-depth briefing here.

As it is put by Mr Russell “the Court held that when the Scottish Parliament passed the Continuity Bill it had the power to decide what should be done, in devolved Scots law, to protect our system of laws from the damaging consequences of EU exit” but that the EU Withdrawal Act circumscribed that power.

Having acknowledged that the Scottish Government would not attempt to bring the Continuity Bill back for reconsideration by Parliament, the Cabinet Secretary outlines steps being taken by the Scottish Government to pursue policy objectives that were to have been given effect by the Bill.

Agreeing new protocols with the Scottish Parliament, which are now in place, to enable MSPs to

have greater scrutiny of Brexit legislation

The Continuity Bill provided for a system for “sifting and upgrading” Brexit related Scottish statutory instruments: this has now been established through protocols agreed by the Parliament and the Government.

Strengthening environmental protection, including seeking opportunities to legislate

The Bill also required the Scottish Government to consult on environmental principles and governance. A consultation took place and closed last month.

The letter notes that the Government intends to continue to develop policy for future environmental principle and governance in Scotland and that they intend to put in place the “legislative and institutional arrangements that will be required.”

Mr Russell also notes that if any arrangements are required during the transition period that it is intended that the Scottish Government will design interim arrangements that reflect their policy.

Looking at how best to safeguard important EU human rights values

The Continuity Bill contained provisions to retain the Charter of Fundamental Rights as a part of Scots law. The terms of the EU Withdrawal Act, as construed by the Supreme Court, mean that doing so is not within the Scottish Parliament’s legislative competence.

Mr Russell notes that the Scottish Government remains intent on preserving the terms of the Charter of Fundamental Rights and that the First Minister’s Advisory Group on Human Rights Leadership will consider how this can be done. He also notes that a National Task Force will be established to take the work forward.

Bringing forward new legislation to ensure Scots law continues to align with EU law

Lastly, and arguably most fundamentally, the letter records an intention to “bring back the provisions on keeping pace with EU law in new legislation. The extent to which devolved law aligns itself with the law of the EU should be a decision for the Scottish Parliament to take, not the UK Government.”

It makes a commitment that no regression in standards or protections should EU exit take place, and notes that the replacement of regulatory powers lost in consequence of EU exit will be essential to ensure that, describing the programme of secondary legislation required for exit day to keep Scots law functioning after EU exit as an “unwelcome but necessary task.”