Leading academics have warned MSPs that a proposed bill which would allow the Scottish Government to adhere to future EU regulations on the environment and other measures is at “high risk” of being struck down.
Professor Eloise Scotford, an environmental law academic from University College London, warned MSPs at a meeting of the Environment, Climate Change and Land Reform Committee that the new European Union (Continuity) (Scotland) Bill, the Scottish Parliament’s alternative to the EU Withdrawal Bill passed in Westminster, could follow its predecessor in being struck down by the Supreme Court.
In 2018, an earlier version of the bill was struck down by the Supreme Court after judges decided it included powers which were outwith of the power of the Scottish Parliament.
At the time, the Scottish Brexit secretary Mike Russell claimed the UK government had "changed the rules of the game midway through the match" in an "act of constitutional vandalism".
However, Professor Scotford has now warned an internal market bill from the Scottish Government would create a “high risk” of a repeat.
She said: “If it does turn out that there is an internal market bill or act to the United Kingdom which replaces some of the function of the European Union in creating common standards particularly in the environment field, that means the bill we are looking at today is at high risk of incompatibility with that and therefore being struck down.
"If you end up with an internal market bill that removes the discretion for the Scottish Government to keep pace then this discretion will be redundant and it will not be able to be exercised.”
Another witness, law academic Professor Campbell Gemmell from the University of Strathclyde, said he was “deeply concerned” that the current arrangements are “inadequate”.
He said: “Given the long term position where environment is more often viewed as a potentially tradable element, I would be deeply concerned that the current arrangements are inadequate to protect the high qualities and standards expected in the Scottish environment.
"There do not appear to be sufficiently robust protections in place but I say that in the absence of there being clarification. It is not as if there are explicit things that cause immediate concern, it’s in fact the lack of detail from my perspective.
Professor James Harrison from the University of Edinburgh, an expert in international environmental law, said the constitution was at a “pivotal moment” and that “serious and robust” conversations are needed.
He said: “We are at a really pivotal moment for our constitution in the UK and the different ways in which various levels of actors will be able to operate independently of each other.
"A fundamental layer that has kept this standard across the UK, i.e. EU regulations and other measures, will have disappeared. There are arguments that something needs to be put in place, it is not a matter of simply not doing anything.
"Many of the EU’s early environmental measures were taken under the single market provisions with a view to promoting access so I think inevitably environment is going to end up tangled up in these internal market discussions.
"We really need a serious and robust conversation about what we want the future UK to look like.”