Senior legal experts have warned that Holyrood and the Scottish government need to take urgent action to cope with the unprecedented legislative challenges posed by the UK’s departure from the EU.
They said delays or mistakes in transferring thousands of EU regulations into Scottish and UK law before Brexit takes place could have serious legal consequences, undermining environmental protection, cross-border policing, trade, consumer rights and university research.
Scottish ministers, the parliament and powerful regulators such as the Scottish Environment Protection Agency, which polices water and air quality, needed to urgently start work on assessing the scale and complexities of the task, they said.
Prof Alan Page, an expert in public law at Dundee university and adviser on the constitutional impact of Brexit to the Scottish parliament, said: “It’s an issue that needs to be addressed and addressed as a matter of urgency. Whatever form it takes, addressing it successfully is going to require a great deal of cooperation between London and Edinburgh, and the Scottish and Westminster parliaments.”
Michael Clancy, the director of law reform with the Law Society of Scotland, the profession’s regulator and representative body, said: “It’s going to be an unprecedented period of policy development and legal reform because we are deconstructing the supra-national legal order and then domesticating it into our national legal order.
“It is going to be extremely exacting. There is going to be an extraordinary amount of work to successfully complete it.”
Their warnings about the workload came as the Scottish government opened up a fresh constitutional battle with Theresa May’s administration in London over the complex measures needed to repatriate thousands of EU rules into UK and also Scottish law, which operates separately from English law and underpins all government activities in Scotland, policing and the judiciary.
David Davis, the UK government’s Brexit secretary, published the outlines of the “great repeal bill” in a white paper at Westminster on Thursday and admitted he did not yet have a clear idea which powers would pass to the UK’s three devolved governments or which would be kept in London.
Under current legislation, Holyrood has wide-ranging autonomy in many areas currently controlled or influenced by the EU including farming, fisheries policy, environmental protection, policing and the justice system. The white paper said those powers were based on UK membership of the EU and single market. It said after Brexit, some powers would have to be exercised at UK level – a position which Scottish farming and fisheries leaders largely accept.
Soon after Davis finished speaking, his Scottish counterpart, Mike Russell, accused him of planning a “power grab” by plotting to withhold EU powers and spending in devolved areas such as farming, fishing and the environment which ought to come directly to Edinburgh.
“For the UK government to seek to impose legislative frameworks on these areas would be to take the unprecedented step of extending its powers over Scotland and must not take place. The Scottish parliament’s competences must not be diminished as a result of Brexit,” Russell said.
Russell and Davis agreed that detailed and extensive talks were needed between both governments. Even so, Nicola Sturgeon’s government believe this dispute may prove to Scottish voters that the UK government wants to dilute Holyrood’s autonomy, shoring up the case for a new independence referendum.
Legislators, officials and legal experts fear this political conflict will overshadow and slow down the essential legislative work needed to guarantee that there is a seamless transition from EU to Scottish law before Brexit takes place.
The great repeal bill must be drafted, amended and voted on by Westminster before the UK can successfully quit the EU in 24 months’ time. But it will also require consultation with Holyrood and finally a Holyrood vote in a so-called legislative consent motion.
Sturgeon’s official spokesman warned she could refuse to pass that consent motion if the Brexit legislation diluted or undermined Holyrood’s powers. “We have no intention of facilitating or enabling the removal of powers from this parliament,” he said.
Lynda Towers, the former Solicitor to the Scottish parliament and now director of public law at Morton Fraser, a large legal firm, said politicians and regulators needed to act quickly. There was a “relatively short period of time” to influence Westminster’s legislation, she said.
Even if there was an independence referendum, those measures would be needed to ensure legal stability and continuity between Brexit taking place and Scotland becoming legally an independent country.
“Surely the government must be doing the best for Scotland in all situations, so the best for Scotland is that they have to take this seriously,” she said.
“If there is to be an independence referendum on top of that, fair enough [but] I think there’s no question this is going to occupy a lot of Holyrood and government time over the next period to make sure that Scotland’s voice is properly heard.”
Lawyers believe Holyrood, the government and regulators will need significant extra resources, setting up specialist committees to review the legislative changes needed. Towers said that would dwarf the parliament’s normal workload, which involves 300 to 400 minor pieces of legislation called statutory instruments per year.
Although Holyrood officials play down the likelihood of needing late night sittings, they expect to have to extend its hours long beyond the three half days in which the parliament normally sits.
Decisions on how Holyrood handles legislation are taken by all five parties through the parliament’s business bureau, but so far no action has been taken. A parliamentary spokesman said: “We need to see the detail of the great repeal bill before considering its implications. In the meantime, officials are also looking at the issue and we await publication of the white paper.”
