Green bill at high risk of being struck down, warn legal experts
Leading academics have warned MSPS that a proposed bill that 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 the University College London, issued the warning to MSPS yesterday at a meeting of the environment, climate change and land reform committee.
She said 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 the remit of the Scottish Parliament.
At the time, 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, Prof 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 thatthereisaninternalmarket 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” the existing arrangements were “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.”
Prof 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 were needed.