THE passing of the EU Continuity Bill in the Scottish Parliament gives the Scottish Government considerable leverage in its negotiations with the UK Government over Clause 11 of the EU Withdrawal Bill.
Theresa May does not want a constitutional crisis, which a protracted and high-profile legal challenge to the Holyrood legislation in the Supreme Court would undoubtedly provoke.
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She continues with difficult Brexit negotiations in Brussels and still needs to come up with a solution to prevent a hard border in Ireland, as well as agree principles of a future trade deal, all with the clock ticking towards the UK’s withdrawal from the EU in 12 months.
In terms of Clause 11 of the EU Withdrawal Bill, her Government has moved some way to accommodate the Scottish Government’s demands, handing 87 of the devolved policy areas being repatriated from Brussels directly to Holyrood, rather than keeping them at Westminster, even if temporarily.
But the UK Government still wants to keep hold of 24 devolved areas – which include farm payments, food standards, animal welfare and procurement – until post-Brexit frameworks are created.
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The crucial issue is not the number of powers being retained, but whether the UK Government will accept the Scottish Government’s demand that it must have the power to agree the frameworks.
The EU Withdrawal Bill is expected to go its final stage in the House of Lords at the end of next month and the UK Government is keen to put down an amendment to Clause 11 then which has received the Scottish Government’s agreement.
Further face-to-face talks between UK and Scottish ministers over such an amendment are probably needed, though currently there are no dates in the diary. If no agreement is reached, the big question is whether a legal battle ensues.
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Over the weekend reports suggested it would, with SNP figures saying it would not be in the best interests of either the Scottish Government or the independence movement for Nicola Sturgeon to reach an agreement.
They said the PM’s refusal to give Holyrood a veto would boost support for independence.
With the EU Continuity Bill passed the First Minister will therefore be in no rush to get an agreement with the UK Government unless it strengthens the devolution settlement and Scotland’s influence. It would seem that deal or no deal, the First Minister’s position is considerably stronger.
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