Scots lawyers on implications of Brexit
Scots lawyers have commented on the implications of the UK’s historic decision to leave the European Union.
Andrew Scott, professor of European Union studies at the University of Edinburgh told Scottish Legal News that the Prime Minister is under no legal requirement to trigger Article 50 TEU at this point and pointed out that the decision to leave will have consequences for devolved competences, which could become the source of intra-UK discontent.
He added: “Once that Article is triggered by a formal letter from PM to European Council then the two-year clock starts ticking. And if not concluded within two years then for negotiations to continue beyond that requires agreement of all other member states. If that is not forthcoming, the UK exits the EU without agreement and the negotiations then are conducted as the UK outside the EU. That changes the rules of engagement and the comfort clauses of Article 50 no longer would apply.”
“I would advise the UK government to conduct extensive informal negotiations before Article 50 procedure is invoked.
“Domestic Scottish issues surround the implications for devolved competences of the repatriation of EU policy - this dependent of course on the type of exit deal the UK secures. But as neither farming nor fishing policies are reserved, I would suggest the default position is that these have to be regarded as devolved.
“This will be resisted in Whitehall, not least because fisheries policy would be likely to become part of exit negotiations. But of course the Scottish government may resist that and, if they do, that type of struggle could become another source of discontent with the intra-UK union.
“And will the Brexit trigger a new wave of demands for the UK to repeal the ECHR? This has to be considered a possibility if not a likelihood. That has huge constitutional (and political) implications for Scotland and the UK union as well.”
Christine O’Neill, chairman of Brodies LLP and a partner in the public law & regulatory team told SLN that the vote may have ushered in the “beginning of another difficult constitutional conversation”.
She said: “The future UK-EU trading relationship will likely be top of the agenda, and businesses will want that resolved as soon as possible. This is where the relationship with a further independence referendum becomes complicated. Without clarity on that future UK-EU relationship, it could be hard to know what a vote for independence (or indeed to stay in the UK) would actually mean.
“Many Scots may have voted Remain because they wanted free access to EU markets. Some of those voters may favour independence if that is the only way to maintain that, yet be content to remain part of the UK if some other trade arrangement can be worked out with the EU.
“There would also be a need to re-open one of the dominant questions of the 2014 debate – whether an independent Scotland could in fact transition to EU membership in its own right, and on what terms. It seems unlikely that this could form part of the exit negotiations unless Scotland had already voted for independence in a second referendum, creating a chicken-and-egg problem. The independence ‘prospectus’ from the 2014 referendum may also have to be revisited, as the EU may frown upon a member state sharing currency and regulatory arrangements with a non-member state.
“In addition, because the EU is a customs union, the Scotland-England border could only remain open if a UK-EU free trade agreement permitted it (also a significant issue for Ireland’s land border).
“Clarity on the post-Brexit UK-EU relationship would therefore be important to properly understanding any independence proposal. With apologies to Churchill, the ‘Leave’ vote may not be the end, nor even the beginning of the end, but just the end of the beginning of another difficult constitutional conversation.”
Eilidh Wiseman, president of the Law Society of Scotland, reminded practitioners that their day to practice will not yet be affected.
She added: “We will closely monitor the UK government’s negotiations with the EU as they develop during this transitional period through to the implementation of the final agreement and consider the potential impact on solicitors’ businesses and practice rights, on the domestic legislative process and on our future interaction with the EU.
“We will work to ensure that our members are kept informed to ensure they can properly advise their clients at every stage.”
The Law Society published an EU Referendum discussion paper which highlights a number of areas where the law would have to change following withdrawal from the EU and sets out the process for how that would happen: EU Referendum discussion paper and Q&A.