The Scottish Affairs Committee inquiry into Scotland’s place in Europe

The UK’s exit from the EU is arguably the most significant constitutional development to affect the UK since 1945.

Of course there have been other highly significant changes - accession to the European Economic Community in 1972, devolution to Scotland, Northern Ireland and Wales, adoption of the Human Rights Act in 1998 and creation of the Supreme Court in 2005 - which have affected the lives of many millions of people living across the UK.

However the UK’s exit from the EU has so many significant aspects including economic, financial, legal, social, and cultural, and will affect everyone living in the British Isles both in the immediate and longer term future. It also has the potential to affect many people living in the EU.

It is difficult to know just how the EU referendum result will affect Scotland’s relationship with Europe; much will depend on the terms of the withdrawal agreement and those of any future relationship between the UK and EU.

The Law Society of Scotland has analysed what it perceives to be the most significant public interest issues and those confronting Scotland’s solicitors, including:

• Ensuring consistent application of the law •Freedom, security and justice
• Recognition of judgements and enforcement of citizens’ rights
• Court of Justice of the European Union cases
• Immigration, residence, citizenship and employment status
• Impact of exit negotiations on the devolved administrations
• Recognition of practice rights and respect for legal professional privilege
• Continuity of business regulation

To quote Bernard Jenkin MP, chairman of Public Administration and Constitutional Affairs Committee, from his note to the cabinet office on ‘Leaving the EU and the Machinery of government’, this is a ‘Whole of government project’.

The Law Society of Scotland thinks that the phrase, ‘Whole of government’, should be interpreted as ‘Whole of Governance’ to include the Scottish government, Northern Ireland executive and Welsh government, as well as the UK government and Whitehall Ministries. On this interpretation, agreements between the UK government, Scottish Ministers, Welsh Ministers and the Northern Ireland Executive Committee would need updating, taking into account the extraordinary circumstances, which apply following the UK’s vote to leave and establish structures to help achieve the best outcome for the UK.

It is crucially important that communications between UK Ministers and the devolved administrations are as transparent as possible and that Whitehall departments are fully appraised of what is important to the devolved administrations and cooperate fully with them.

In June, prime minister David Cameron emphasised that the UK government would ‘fully involve the Scottish, Welsh and Northern Ireland governments’. This was reiterated by the prime minister, Theresa May, following her meeting with the first minister, Nicola Sturgeon MSP, in July. governments however do not have a monopoly on wisdom and it is important that there is wide consultation; the UK Parliament, the Scottish Parliament and other devolved assemblies, civic society bodies, trade unions, professional bodies, universities, churches and other organisations, all have a role in informing the negotiations.

The Law Society of Scotland has outlined the various options for the UK, which may result post Brexit as below, each of which has political, legal, social and economic advantages and disadvantages:

• Participation in a WTO Membership relationship
• Joining the EFTA and EEA agreements
• Participation in a Free trade / Association agreement with the EU
• Participation in a bespoke relationship with the EU

As regards Scotland, the 2016 Scottish National Party (SNP) manifesto stated that ‘the Scottish Parliament should have the right to hold another referendum…if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.’

Since the referendum, Sturgeon has stated that a second independence referendum is ‘highly likely’ following the vote. The appointment of Mike Russell MSP as Minister for UK negotiations in Scotland’s place in Europe and the creation of a new sub-committee of Ministers are also indicative of the Scottish government’s commitment to examine all the options for Scotland’s relationship with Europe.

In the event of Scotland becoming an independent state following a referendum, all the options, as outlined above available to the UK would apply to Scotland. Another option however is for Scotland, as an independent state, to apply to become a member of the EU under article 49.

Legal services contribute more than £1billion to the Scottish economy every year. The Law Society of Scotland has been working with Scottish Development International, UK Trade and Investment, the City UK, the Great Britain-China Council and the UK and Scottish governments to promote the Scottish solicitors profession and the many advantages to doing business in Scotland – high quality graduates, low tax rates and lower costs than other competing regions – up to 40 per cent lower than London and the South East of England according to Financial Times FDI Benchmark.

In the context of the UK’s exit from the EU, the Law Society of Scotland will work to promote continued mutual recognition of practice rights within the EU, continued rights of audience before the EU Courts and respect for legal professional privilege as it applies to Scottish solicitors. As well as updating its members and advising them on the effects of the negotiations, it understands that the potential for economic ramifications could have a knock-on effect on the financial stability of firms. The Law Society of Scotland will therefore be monitoring events closely and will offer any necessary, tailored support for its members.