Bernard Jenkin MP, Chairman of Public Administration and Constitutional Affairs Committee, described Brexit as a “whole-of-government project”. 

It is important to recognise the importance of the ‘whole-of-government’ concept in terms of the negotiations with the EU because of the breadth, depth and scope of EU Law as it applies throughout the UK. In this context “whole-of-government” should be interpreted as “whole-of-governance” to include not only the UK Government but also the Scottish Government, the Northern Ireland Executive and the Welsh Government.

In December 2016, the Scottish Government published a paper, Scotland’s Place in Europe, setting out its preferred approach to negotiations and proposals for a differentiated settlement for Scotland, and its views on further devolution and the wider impact of Brexit on Scottish devolution. The UK Government’s White Papers on the UK’s exit from and new relationship with the EU, and on the Great Repeal Bill, set out some of the plans and priorities of the UK Government in the negotiations ahead, and acknowledge the role of the devolved administrations. The Prime Minister confirmed the importance of respecting devolution settlements while simultaneously negotiating as one United Kingdom. Mrs May confirmed that there will be full consultation on where the powers repatriated to the UK from the EU should sit within the devolution framework of the UK and with the expectation that the devolved administrations will gain further powers as a result. However, speculation remains about what future relationships between the UK and the EU and the intra-UK relationships will look like.

Different arrangements for devolution apply in each of the UK’s three devolved nations. Consequently, the impact of the UK’s withdrawal from the EU will be different for Scotland, Northern Ireland and Wales. Understanding how the different jurisdictions will be affected, will require careful analysis, stakeholder engagement, consultation and respect for the rule of law - a “one size fits all” solution is simply not workable.

For Scotland, there are particular issues about our legal system, constitutional arrangements such as legislative competency, and how EU laws are dealt with once they are repatriated. This will affect justice and home affairs, environmental law, farming, and research, amongst other areas of law and policy.

The extent and method of post-Brexit devolution is a matter for political negotiation between the UK Government and the devolved administrations.

Options currently being explored include:-

  • A constitutional convention
  • A commission (similar to the Smith or Calman Commissions)
  • The JMC (EN) or another sub-Committee of the JMC
  • A new structure including UK, Scottish, Northern Irish and Welsh Ministers, subject experts and stakeholders.

The principles of legality, openness, transparency and clarity should guide the decision making process and a spirit of cooperation will be fundamental. 

As the Law Society of Scotland, we have already begun promoting a set of principles which, in the interests of both the public and our members, we believe the UK should adopt in forthcoming negotiations.

We have been briefing politicians on the legal aspects and implications of Brexit negotiations, and responding to the wide range of parliamentary inquiries on Brexit issues in areas such as devolution, the justice system and human rights.

We have participated in the Scottish Government’s EU Justice and Security Summit, held our own member events and attended the main political party conferences, where we hosted fringe events on Brexit. We will continue to play our part in the discussion. For further information on our Brexit work, visit our website.