A new Bill put forward by Ms Sturgeon’s Constitution Secretary hopes to allow Scottish ministers a discretionary power to align laws with EU legislation. The UK Withdrawal from the European Union (Continuity) (Scotland) Bill means on devolved matters Scotland can keep in line with those in Europe “when appropriate and practicable to do so”.
The Bill proposes to allow the Scottish Government to use regulations rather than legislation to “keep pace” with the European Union on devolved areas after Brexit.
The discretionary powers will come into effect after the Brexit transition period ends on December 31 if the legislation is passed by the Scottish Parliament.
The Bill also includes provisions to ensure EU environmental principles and governance can continue in Scotland.
A new body called Environmental Standards Scotland will be set up to ensure compliance with environmental law under the legislation.
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The Bill has now been scrutinised by cross-party SNP, Labour, Lib Dem and Tory MSP’s on Holyrood’s Finance and Constitution Committee who stressed the Scottish Government would need to be clearer on how they would exercise such a power but backed the initial reasoning of the Bill.
But Brussels has cast doubts over the legislation stressing Scotland would have to reapply if they wanted to rejoin the EU “just like everyone else”.
One EU official told Express.co.uk: “This legislation has been noted but it could create a difficult position for Scotland and wouldn’t be effective.
“Many regulations and rules which are passed by the EU will be difficult to implement in Scotland at present and will not apply to them.”
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Murdo Fraser had significant concerns about the Bill
The Bill has also angered Whitehall officials who last night accused Scotland of “putting up trade barriers” with the rest of the UK.
A UK Government spokesperson also told this website: “The devolved administration’s approach would separate Scotland from the rest of the UK – putting up trade barriers and creating further division.”
They warned Edinburgh would have a big task on their hands when assessing the EU’s annual legislative outputs.
SNP MSP Bruce Crawford, Holyrood’s Finance and Constitution Committee Convener, said: “Our Committee supports the keeping pace power in principle, but is of the view that it would not be appropriate or workable for it to be absolute and inflexible.
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The leglisation aims to keep pace with the EU after Brexit
“Our committee does not accept that the use of this power should be entirely at the discretion of the Scottish Government and believes that there needs to be much greater clarity on how the Government proposes to use the power.
“We recommend that the Bill should be amended to require the Scottish Government to provide guidance setting out the criteria which will apply to the use of the power.
“The guidance should also clearly set out how the keeping pace power interacts with other sources of regulation which will impact on people and business in Scotland.
“This should include the impact of trade deals, common frameworks and the operation of the UK internal market.”
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Tory MSP Murdo Fraser, part of Holyrood’s Finance and Constitution Committee also tabled an amendment to the final report which stated that the ability of ministers to legislate by using regulations was “not appropriate”.
Mr Fraser urged the Committee to say: “The Committee accepts that there may be a place for a Bill which authorises Scottish Ministers to make minor or technical changes to retained EU law, but the powers in this Bill go far beyond that.
“The Committee believes that it is not appropriate for Scottish Ministers to have the power to introduce new laws enacting significant policy changes by means of secondary legislation.”
But the motion was voted down by three votes to eight, with only Mr Fraser’s fellow Tories Dean Lockhart and Alexander Burnett voting in favour.
Scotland’s Constitution Secretary Michael Russell
An earlier version of the Bill was struck down by the Supreme Court in 2018 after judges decided it included powers which were outwith of the power of the Scottish Parliament.
Scotland’s Constitution Secretary Michael Russell, who introduced the Bill to Scottish Parliament earlier this year, said : “It is completely unacceptable that Scotland has been taken out of the EU but this Bill will enable us, in devolved areas at least, to ‘keep pace’ with Europe, when appropriate and practicable to do so.
“It is required as a direct result of the UK’s withdrawal from the EU, and is more urgent because of the UK Government’s reckless refusal to ask for an extension to the Brexit transition period.”
Bruce Crawford, convener of the Scottish Parliament Finance and Constitution Committee
A Scottish Government spokesman, added: “We will consider the Committee’s recommendations carefully and welcome its support for the principle of the proposals in the Bill to enable Scotland to keep pace with EU law where that is appropriate and practicable.
“Those are designed to ensure certainty, stability and predictability for people in Scotland and those who do business here and in Europe, and to ensure that Scotland’s environmental standards can keep pace with those in the EU level.”