The paper on ‘Enforcement and dispute resolution’ and Monday’s paper on ‘Security, law enforcement and justice’ have significant implications for areas of law which are devolved to the Scottish Parliament and for the Scottish legal system. Yet there was no prior consultation with the Scottish Government or its Law Officers regarding these papers.
Both were published when the UK parliament was in recess so there has been little opportunity for parliamentary scrutiny at Westminster.
Fortunately, the Scottish Parliament is well ahead of the game. On 14 September, as part of its inquiry into the Article 50 negotiations, the Culture, Tourism, Europe and External Relations Committee, chaired by Joan McAlpine MSP, heard evidence from Professor Sir David Edward, former judge of Court of Justice of the European Union (“CJEU”), Laura Dunlop QC and Peter Seller from the Faculty of Advocates and Michael Clancy from the Law Society of Scotland.
It was a lively session during which Sir David described the paper on enforcement and dispute resolution as “an undergraduate essay which would have failed”. He said that those writing these papers are not aware of the problems posed by the existence of a separate Scottish legal system and do not want to hear from experts who have offered to help.
Sir David’s evidence highlighted the fact that the UK Government has overlooked the significance of the separate Scottish legal system, the Scottish judicial system and the Scottish prosecution system in relation to Justice and Home Affairs issues such as Europol, the European Arrest Warrant, cross-border information systems and the conventions and regulations about recognition and enforcement of judgments. I know this to be the case, because when I received a courtesy call from a Junior Home Office Minister to advise of the publication of the second paper he seemed surprised when I took him to task for the lack of consultation with my Scottish Government colleagues and unaware that law enforcement and justice are devolved.
This matters because EU agencies such as Europol play a major part in day to day policing in Scotland, enabling the police to continue to work with our partners across Europe to target foreign criminals in Scotland and Scottish criminals on the European continent. For example, last year Europol supported Police Scotland and Romanian Police to dismantle a Romanian organised crime network involved in the trafficking of Romanian victims for sexual exploitation in Scotland.
It is not just in relation to Scotland that these papers are lacking. Sir David’s gripe with the paper on Dispute Resolution is that it completely misses the point that EU law is not so much about resolving disputes between member states and the EU but rather about protecting the rights of individual citizens. Significantly the EU Withdrawal Bill removes the right of individuals to challenge the UK government for breach of the general principles of retained EU law including rights relating to children and the free standing right to non discrimination which have no equivalent protection in domestic UK law.
The UK Government claims that one of its key aims in designing a future UK/EU partnership is to maximise certainty for individuals and businesses. However these vague and open ended papers create uncertainty and, by side-lining one of the main purposes of EU law and overlooking the significance of the devolved competences and the separate Scottish legal system, they do not inspire confidence.