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by Jenni Davidson
09 December 2020
In context: UK Withdrawal from the European Union (Continuity) (Scotland) Bill

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In context: UK Withdrawal from the European Union (Continuity) (Scotland) Bill

What is the purpose of the bill?

The UK Withdrawal from the European Union (Continuity) (Scotland) Bill aims to make sure that Scots law can continue to align with EU law in devolved areas such as the environment, agriculture and fisheries after the Brexit transition period ends on 31 December 2020. Doing so would maintain Europe-wide standards and would also make it easier for Scotland to re-join the EU in future because its laws would continue to be similar in relevant areas.

What does the bill cover?

The bill is divided into two parts. The first gives ministers the power to make changes to Scots law in devolved areas through secondary legislation after the transition period ends in order to keep pace with any future developments in EU law.

The other part focuses on the environment. It brings the EU’s four core environmental principles into Scots law as ‘guiding principles on the environment’ and requires the Scottish Government and public bodies to consider them when making environmental laws and policies. It also sets up a new organisation called Environmental Standards Scotland (ESS) to replace the oversight of environmental law previously provided by the EU. ESS will be responsible for making sure that public bodies in Scotland comply with environmental law and that environmental legislation in Scotland is effective.

That name of the bill sounds familiar…

Indeed. Perhaps it should be known as UK Withdrawal from the European Union (Continuity) (Scotland) Bill 2 as it replaces the similarly named UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, which was passed by MSPs on 21 March 2018 but could not become law after parts of it were ruled by the Supreme Court to be outwith the competence of the Scottish Parliament. This second bill should not encounter the same problems because it is more tightly focused than the previous one and excludes the areas deemed out of bounds by the court.

Anything controversial about this bill?

The Scottish Greens and the Scottish Liberal Democrats have said they don’t believe the bill in its current form provides enough accountability to ensure Scotland will keep up with EU environmental and nature protections. Scottish Labour wants the Scottish Parliament to have a greater role in appointments to and scrutiny of ESS to ensure its independence from government. Labour’s Claudia Beamish and the Greens’ Mark Ruskell have both tabled amendments to remove the exclusion of climate change from the bill’s definition of environmental law and bring compliance with the Climate Change Act 2009 under the oversight of ESS. The Scottish Conservatives oppose the general principles of the bill altogether, voting against it at stage one.

The two committees charged with examining the bill, the Environment, Climate Change and Land Reform Committee and the Finance and Constitution Committee, have also raised issues in their stage one reports, including the independence of ESS from government; how the keeping pace power will interact with other legislation, trade deals and the UK internal market; and how the Scottish Government intends to use the powers in the bill and whether primary rather than secondary legislation might be more appropriate to make changes to the law.

What is the timetable for the bill being passed?

The bill is currently at stage two, which is due to be completed by 4 December. This should leave just enough time for MSPs to complete stage three before the Scottish Parliament breaks for Christmas. 

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