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The Future Impact and Effect of Brexit on Scots Law and the Scottish Legal System

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The Law Society of Scotland The Future Impact and Effect of Brexit on Scots law and the Scottish legal system I Chapter1 The Law Society of Scotland: The future impact and effect of Brexit on Scots law and the Scottish legal system Contents Foreword 1 Executive summary 2 Introduction 4 CHAPTER 1 The development of the Scottish legal system 7 CHAPTER 2 The courts and tribunals in Scotland 12 CHAPTER 3 The United Kingdom’s decision to leave the European Union 18 CHAPTER 4 The consequences of the United Kingdom leaving the European Union 25 CHAPTER 5 The EU impact on Scots Law 40 CHAPTER 6 Common frameworks 59 CHAPTER 7 Teaching EU Law in law schools post-Brexit 67 CHAPTER 8 Conclusions 70 Bibliography 74 III The Law Society of Scotland: The future impact and effect of Brexit on Scots law and the Scottish legal system Chapter IV 1 The Law Society of Scotland: The future impact and effect of Brexit on Scots law and the Scottish legal system Foreword In 2016 the United Kingdom voted to leave the European Union. In the three years since that historic vote there has been much debate on Brexit and the impact it will have throughout the UK and in Europe, however a great deal of uncertainty remains over our departure and future outwith the EU. What we can be certain of is that leaving the EU will We are very grateful to the Legal Education Foundation have a profound effect on Scots Law and on the legal whose funding has allowed us to dedicate the time and profession. resource necessary to undertake this significant piece of work. We know that many of our members believe that Brexit is the single biggest issue facing them as a Scottish I hope you find ‘The future impact and effect of Brexit solicitor. While we cannot fully predict the impact of on Scots law and the Scottish legal system’ a useful and Brexit on the Scottish legal system, we believe there informative read as we approach the biggest change in must be legal stability, maintenance of freedom, justice our constitutional make-up in over 40 years. and security with respect for the rule of law, citizens’ rights and the devolved arrangements. Our paper, which provides an overview of the developments of Scots Law and the Scottish legal system, seeks to clarify on the legal processes of Brexit and shed light on the impact it is likely to have on the law, the legal system and on the rights of all those living John Mulholland and working in Scotland today. In the paper we also President explore the challenges and opportunities that Brexit may present for the legal system and the profession. 1 A study into the future of the Scottish Legal System following the UK’s decision to leave the European Union Executive summary On 23 June 2016, a referendum took place in the UK. The question on the ballot paper was "Should the United Kingdom remain a member of the European Union or leave the European Union?" The referendum result was 51.9% in favour of leaving and 48.1% in favour of remaining in the EU on a turnout of 72.2% of the electorate. While at the time of writing the terms of the UK’s Rather than undertake the huge task of considering departure are still uncertain, the decision to leave the EU what every aspect of the UK’s departure from the EU will undoubtedly have a profound effect on the Scots law will have on every aspect of the law in Scotland and as a result of the transition of EU law into domestic UK risk leaving out one or more areas that may develop and Scots law. distinctly in terms of Scottish Government policy, the methodology considers the definitions of Scots private The Law Society published the results of its 2018 annual law and Scots criminal law at section 126 of the Scotland members’ survey in March 2019. 17% of members who Act 1998 and relates those definitions to EU law as it took part in the survey stated that Brexit was the single affects those areas. biggest issue facing them as a Scottish solicitor. The paper is divided into eight chapters This paper seeks to provide some understanding as to 1 A brief history of the development of the Scottish legal the effect that Brexit will have upon the law of Scotland, system. the rights of people living and working in Scotland and the challenges and opportunities that Brexit will present 2 The courts and tribunals in Scotland. This chapter to the legal system. covers the distinct development of the Scottish courts adjudicating on Scots law. In particular, in terms The approach to the paper is to provide a summary of of section 6(2) of the European Union Withdrawal the development of Scots law and the Scottish legal Act 20181, a court or tribunal “may have regard to system, examine legislative developments arising from anything done on or after exit day by the European Brexit and the impact these legislative changes will have Court, another EU entity or the EU so far as it is on the Scottish legal system and those studying and relevant to any matter before the court or tribunal”. practising Scots law. Therefore, UK judges will no longer be bound to follow the judgments of the CJEU after exit day, but these cases will still be persuasive. The chapter also refers 1 The European Union Withdrawal Act section 6 Interpretation of retained EU 2 law 2018 - http://www.legislation.gov.uk/ukpga/2018/16/section/6/ to research published in 2017 by Professor Barry enacted Rodger of the University of Strathclyde School of Law 2 The Application of EU Law by the Scottish Courts: An analysis of case law which provided some analysisChapter on the extent to which trends over 40 years - Barry Rodger The Juridical Review 2017 Part 2 2 1 A study into the future of the Scottish Legal System following the UK’s decision to leave the European Union EU law is considered and applied in order to assess its and looks at the intersection of these subsections impact on the Scottish legal order. The impetus for this with EU law. It also suggests some possible options research was the then ongoing case of Scotch Whisky for continued cooperation with the EU after exit day Association and others v Lord Advocate and another.3 where legal issues have a cross border element. 3 The United Kingdom’s decision to leave the European 6 Common frameworks. These will be needed either Union. This chapter provides some commentary on where there is no Withdrawal Agreement or when the history of the EU, the UK’s part in its development, the transition or implementation period under the and how we got to the decision to hold a referendum Withdrawal Agreement comes to an end on 31 in 2016 on whether the UK should remain in the EU or December 2020. They are necessary to enable the leave the EU. functioning of the UK internal market. 4 The consequences of the United Kingdom leaving the The Scottish Parliament Information Centre (SPICe) paper, European Union provides for a short analysis on each Common UK Frameworks after Brexit (2 February 2018 “legal stage” of the Brexit process. SB 18-09), noted that: “The 1999 devolution settlements were designed on the principle of a binary division of power The decision of the UK Supreme Court in the Miller case between what was reserved and what was devolved. This determined that article 50 of the Treaty of the European model had advantages in terms of clear accountability, Union (TEU) cannot be triggered without legislation. but it meant the UK did not have to develop a culture of or The European Union (Notification of Withdrawal) Act institutions for ‘shared rule’ between central and devolved 2017 provided the Prime Minister with the necessary levels. The UK membership of the EU further contributed to authority to notify the European Council of the UK’s the weakness of intergovernmental working, since many intention to leave the EU. The consequences of service policy issues with a cross-border component (including of the withdrawal notice on 29 March 2017 were that environmental protection, fisheries management, and there should be a negotiation of an agreement between market-distorting state aid) were addressed on an EU-wide the UK and the remaining member states. Article 50 also basis.”4 provides for the cessation of the treaties to the UK either from the date of entry into force of this agreement or This chapter also considers the interaction between two years after date of notification unless the European frameworks and the negotiation of new international Council, in agreement with the UK, unanimously agrees agreements, acknowledging the role of the devolved to extend this period. Exit day at present is 31 October administrations in this regard. 2019. 7 Teaching EU law in law schools post-Brexit. This The European Union Withdrawal Act 2018 repeals the chapter considers that retained EU law will have European Communities Act 1972 and incorporates to be taught as it forms part of Scots law. Scottish and adopts EU legislation onto the UK statute book. Government has now expressed an intention to It also provides for parliamentary approval of the UK keep pace with EU law after exit day, so there will government’s negotiation with the EU (the meaningful undoubtedly be an increased focus in the areas of vote). both private international law and public international law.
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