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EU returning Powers

When the Scotland Act was devised and subsequently approved, the nature of any devolved powers to Scotland was agreed. 

Before devolution, Westminster had control of all powers. After devolution, Westminster cherry-picked the powers they maintained were necessary to provide a UK wide framework for implementation - these became known as "Reserved Powers".

Instead of making an exhaustive list of the powers that were left, they simply declared that if any powers were NOT on the list of reserved powers, they would be devolved to Scotland by default.

The European Union (Withdrawal) Bill, as it is currently drafted fails to reflect the principles of devolution concerning 111 recognised powers that are scheduled to be returned from Brussels.

This article lists all 111 powers in alphabetical order and highlights the concerns from Westminster and Holyrood over how these powers should be allocated.

As already mentioned, according to the Scotland Act, any powers that are not specified on the Reserved List are automatically devolved to Scotland. The Act was agreed by both Governments.

This avoided the need to itemise all of the remaining powers and seemed to make perfect sense to the Westminster Government of the day. Of course, this was way back in the late 1990s - and nobody imagined for a second that the powers which were assigned to Brussels would come into play. However, with the vote to Leave the EU in the referendum of 2016, 111 powers scheduled to be transferred from the EU will impact on the devolution agreement.

The Scottish Government has been working with the Welsh Government to prepare a set of amendments to the proposed European Union (Withdrawal) Bill which would, if made, turn the Bill into one that properly respects devolution and ensures that the Scottish Parliament and the National Assembly for Wales do not have their competence restricted by EU withdrawal.

This would ensure that powers returning from the EU are devolved to Scotland and Wales by default.

The Westminster Government maintains all EU returning powers should go straight to Westminster and then they will decide what should be passed on to the appropriate devolved Administrations. Understandably, the Scottish Government and the Welsh Assembly see this as a blatant power-grab which goes against the spirit (and constitutional arrangement) of the agreed devolution settlements.

Brexit Talks 14.11.2017

Brexit talks 14/11/2017

Scotland's First Minister Nicola Sturgeon met with UK Prime Minister Theresa May at 10 Downing Street to discuss the EU Withdrawal Bill. (14.11.2017).

This was the first meeting since their last encounter in March 2017.

After the meeting, Nicola Sturgeon advised that the Scottish Parliament won’t accept the bill in its current form.

"I made very clear, as the Scottish government has done consistently, that the withdrawal bill as it stands would not be acceptable and we would not be able to recommend approval of that. That remains the position, but hopefully having had the opportunity to air the concerns that we have in more detail, we will be able to see progress in the weeks to come."

"While we didn’t reach agreement, I think we developed a better understanding of each others’ positions. I made clear that the Scottish government wants to find agreement on the Withdrawal Bill. We oppose Brexit but we understand withdrawal legislation is necessary, so we want to find agreement."

"But I also made clear what our bottom lines are on that Bill. Discussions will continue and hopefully we can reach some points of agreement in the weeks to come."

The main sticking point is that post-Brexit, the bill moves powers to Westminster that should default to Holyrood. The UK government is seeking the consent of Holyrood for the bill - but the consent of the Scottish parliament isn’t actually necessary. If consent is not given then the UK government could proceed regardless as the UK parliament holds ultimate sovereignty.

However, proceeding without consent would ignite a constitutional crisis that the UK government will want to avoid.

In the next week or so, amendments could be made to the bill which could placate the Scottish government. The UK government is extremely weak so there is a good chance that the Scottish Government might get the concessions they are demanding.

As the negotiations intensify, here is the alphabetical list of all 111 powers...

Powers returning from the EU that intersect with the devolution settlement in Scotland

  1. Agricultural Support

  2. Agriculture - Fertiliser Regulations

  3. Agriculture - GMO Marketing & Cultivation

  4. Agriculture - Organic Farming

  5. Agriculture - Zootech

  6. Animal Health and Traceability

  7. Animal Welfare

  8. Aviation Noise Management at Airports

  9. Blood Safety and Quality

  10. Carbon Capture & Storage

  11. Chemicals regulation (including pesticides)

  12. Civil judicial co-operation - jurisdiction and recognition & enforcement of judgments in civil & commercial matters (including B1 rules and related EU conventions)

  13. Civil judicial co-operation - jurisdiction and recognition & enforcement of judgments instruments in family law (including BIIa, Maintenance and civil protection orders)

  14. Civil judicial cooperation on service of documents and taking of evidence

  15. Criminal offences minimum standards measures - Combating Child Sexual Exploitation Directive

  16. Control of major accident hazards

  17. Cross border mediation

  18. Data sharing - (EU fingerprint database (EuroDac)

  19. Data sharing - European Criminal Records Information System (ECRIS)

  20. Data sharing - False and Authentic Documents Online (FADO)

  21. Data sharing - passenger name records

  22. Data sharing - Prüm framework

  23. Data sharing - Schengen Information System (SIS II)

  24. Efficiency in energy use

  25. Elements of Reciprocal Healthcare

  26. Elements of the Network and Information Security (NIS) Directive

  27. Elements of Tobacco Regulation

  28. Energy Performance of Buildings Directive

  29. Environmental Impact Assessment (EIA) Directive

  30. Environmental law concerning energy planning consents

  31. Environmental law concerning offshore oil & gas installations within territorial waters

  32. Environmental quality - Air Quality

  33. Environmental quality - Chemicals

  34. Environmental quality - Flood Risk Management

  35. Environmental quality - International timber trade (EUTR and FLEGT)

  36. Environmental quality - Marine environment

  37. Environmental quality - Natural Environment and Biodiversity

  38. Environmental quality - Ozone depleting substances and F-gases

  39. Environmental quality - Pesticides

  40. Environmental quality - Spatial Data Infrastructure Standards

  41. Environmental quality - Waste Packaging & Product Regulations

  42. Environmental quality - Waste Producer Responsibility Regulations

  43. Environmental quality - Water Quality

  44. Environmental quality - Water Resources

  45. Environmental quality - Biodiversity - access and benefit sharing of genetic resources

  46. Equal Treatment Legislation

  47. EU agencies - EU-LISA

  48. EU agencies - Eurojust

  49. EU agencies - Europol

  50. EU Social Security Coordination

  51. Fisheries Management & Support

  52. Food and Feed Law

  53. Food Compositional Standards

  54. Food Geographical Indications (Protected Food Names)

  55. Food Labelling

  56. Forestry (domestic)

  57. Free movement of healthcare (the right for EEA citizens to have their elective procedure in another member state)

  58. Genetically modified micro-organisms contained use

  59. Good laboratory practice

  60. Harbours

  61. Hazardous Substances Planning

  62. Heat metering and billing information

  63. High Efficiency Cogeneration

  64. Implementation of EU Emissions Trading System

  65. Ionising radiation

  66. Land use

  67. Late payment (commercial transactions)

  68. Legal aid in cross-border cases

  69. Migrant Access to benefits

  70. Minimum standards -housing & care: regulation of the use of animals

  71. Minimum standards legislation - child sexual exploitation

  72. Minimum standards legislation - cybercrime

  73. Minimum standards legislation - football disorder

  74. Minimum standards legislation - human trafficking

  75. Mutual recognition of professional qualifications

  76. Mutual recognition of criminal court judgments measures & cross border cooperation - European Protection Order, Prisoner Transfer Framework Directive, European Supervision Directive, Compensation to Crime Victims Directive

  77. Nutrition health claims, composition and labelling

  78. Onshore hydrocarbons licensing

  79. Organs

  80. Plant Health, Seeds and Propagating Material

  81. Practical cooperation in law enforcement - Asset Recovery Offices

  82. Practical cooperation in law enforcement - European Investigation Order

  83. Practical cooperation in law enforcement - Joint Action on Organised Crime

  84. Practical cooperation in law enforcement - Joint investigation teams

  85. Practical cooperation in law enforcement - mutual legal assistance

  86. Practical cooperation in law enforcement - mutual recognition of asset freezing orders

  87. Practical cooperation in law enforcement - mutual recognition of confiscation orders

  88. Practical cooperation in law enforcement - Schengen Article 40

  89. Practical cooperation in law enforcement - Swedish initiative

  90. Practical cooperation in law enforcement - European judicial network

  91. Practical cooperation in law enforcement - implementation of European Arrest Warrant

  92. Procedural rights (criminal cases) - minimum standards measures

  93. Provision of legal services

  94. Provision in the 1995 Data Protection Directive (soon to be replaced by the General Data Protection Regulation) that allows for more than one supervisory authority in each member state

  95. Public sector procurement

  96. Public health (serious cross-border threats to health)

  97. Radioactive Source Notifications – Trans-frontier shipments

  98. Radioactive waste treatment and disposal

  99. Rail franchising rules

  100. Rail markets and operator licensing

  101. Recognition of insolvency proceedings in EU Member States

  102. Renewable Energy Directive

  103. Rules on applicable law in civil & commercial cross border claims

  104. Sentencing - taking convictions into account

  105. State Aid

  106. Statistics

  107. Strategic Environmental Assessment (SEA) Directive

  108. Tissues and cells

  109. Uniform fast-track procedures for certain civil and commercial claims (uncontested debts, small claims)

  110. Victims rights measures (criminal cases)

  111. Voting rights and candidacy rules for EU citizens in local government elections

 

Useful Links

The Scottish Government: Defending Devolution

Full 111 EU Powers Scotland says they are Denied

Full List of 111 Powers Vulnerable to Brexit Power Grab Published

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