The future of commercial law is ... to be decided in Scotland?

The future of commercial law is ... to be decided in Scotland?

That the coming UK general election is impossible to call; that it will probably result in a hung parliament; and that the inevitable uncertainty will spook businesses, are all universally acknowledged truths as we look towards election day on 7 May.

The UK is entering a period where predictions are increasingly fruitless.

So how does this affect commercial lawyers?

After all, we have had elections before (quite a few if truth be told—the next Parliament will be the 56th Parliament of the United Kingdom). We’ve coped. If anything, a lot of commercial law is now debated and decided on a European level, whether it be commercial agency arrangements or consumer protection law. What does it really matter?

Well, on a micro level it matters as the new government will need to ensure, for example, that the Consumer Rights Bill is implemented properly (provided it receives Royal Assent before Parliament is dissolved in a few weeks). If a government is not formed quickly, the proper implementation of this vital reform could be delayed. Now, I’m not suggesting that it will take 541 days to negotiate the formation of a government—as was the case in Belgium in 2010-11—but there are plenty of enacting statutory instruments under the Bill (and related guidance) that ideally needs to be sorted out before 1 October 2015, when the Bill is pencilled to come into force. Time-wise, there isn’t much room for manoeuvre there. (What’s more, there is also plenty of other work that will be in the new government’s in box: see our Commercial timelines produced earlier in the year for details.)

On a macro level it is also clear that the ‘direction of travel’ of the new government, whenever and however it is formed, will matter a great deal to the business and legal community and how they plan for the future. Will it be left wing? Right wing? Middle of the road? Or a confusing combination of all three, depending on the policy in question?

Today, I attended a talk at the LSE where the Scottish First Minister, Nicola Sturgeon, gave a speech on the forthcoming UK Budget. That was the formal reason for her attendance; informally, however, many present were more keen to learn what her party’s approach is likely to be in the event of a hung parliament. After all, recent polls have led to much speculation that the SNP could hold the balance of power in Westminster after 7 May.

She didn’t give that much new away: the SNP will not go into coalition with the Tories (I’m not a betting man but this fact didn’t exactly surprise me) but she did, on the other hand, express a willingness to work informally with Labour.  She said:

we will - crucially if we get the chance - bring to bear our hard earned experience of government - including of successful minority government - in arguing for a different, better way of doing things.


we have clear and constructive views on many aspects of UK policy which affect Scotland deeply – views which we know are often shared by many people elsewhere in the UK. And we intend to bring those ideas forward in a positive spirit.

So, even though voters in England and Wales are unable to vote SNP, this will not stop the party, if needs be, from legislating on UK-wide issues.

She concluded by stating,

if we get the opportunity, we intend to be a constructive voice in the months and years ahead. We won’t just serve Scotland’s interests -though we will most certainly do that. But we will seek do more than that - we will also seek to play our part in bringing about positive, long-lasting and progressive change right across the UK.

Therefore, commercial lawyers would do well to keep an eye out at what is happening north of the border (and indeed elsewhere in the UK): not only because we always have things to learn from our Scottish colleagues, but also because what happens in Scotland may soon happen in the UK. Just as a deceased and decomposing mollusc from Paisley—in the Scottish case of Donoghue v Stevenson—became a game-changer in the English law of negligence, so the next general election could see a much greater influence of those parties which typically have little influence over the policies of the UK government.

So what do you think? How do you think the general election will affect commercial lawyers? As always, do let us have your thoughts below.

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