Scotland stands to gain significant levels of independence over farming, fisheries and areas of industrial policy if it can strike the right deal with UK ministers after Brexit, the Scottish parliament has been told.
Prof Alan Page, an expert on public law at Dundee University, told MSPs investigating the impact of leaving the EU that Holyrood would be free to fix a minimum price for alcohol. That policy has been held up in the courts for four years by the whisky industry using European law.
Scotland could also pursue its own industrial investment policies free from EU rules restricting state aid after Brexit, subsidising or boosting some industries to protect employment, he said.
Holyrood would be able to decide its own fisheries, farming and pollution policies, and control all food safety and agricultural funding rules for genetically modified foods, because these areas are already devolved to Scotland but currently overseen by the EU, Page said.
It could introduce stricter or more wide-ranging rules on climate change policy than the rest of the UK, as long as that did not undermine the UK’s international duties. Other experts warn Scotland would need to be flexible on foreign fishing quotas in Scottish waters to avoid damaging UK trade deals.
The advice will be seized on by opposition parties, particularly the Tories, and a handful of Scottish National party MSPs – including the former health secretary Alex Neil, now pressing the Scottish government to maximise the “Brexit dividend”.
Neil said Page’s report did not mention Holyrood’s opportunity to take on VAT, which raises £8.3bn a year in Scotland. EU rules heavily restrict the rights of member states to change VAT rates and also ban Holyrood from setting its own rates.
Neil said: “Glaring out throughout this report is the massive political opportunity for the Scottish parliament to use Brexit not just to ensure we get control over all EU competencies that we should control, but to actually use this exercise to get additional powers.”
Nicola Sturgeon, the first minister, has not yet set out any clear shopping list of new powers for Holyrood and is instead campaigning on issues such as insisting the UK has to retain its membership of the EU single market on similar lines to Norway, and protect migrants’ rights of residence.
Many commentators caution that taking on these new powers will require a further increase in Holyrood’s budgets from the UK government, to replace the hundreds of millions of EU farming, structural and university research grants Scotland would lose after Brexit.
Page said repatriating many of these powers would need both the Scottish and UK governments to agree on common standards in many areas, to avoid conflicts with trade partners and with the UK’s international legal obligations in areas such as climate policy and the environment.
There were also subtle but significant dangers to Holyrood’s authority if UK ministers used secondary legislation to transpose EU laws into British legislation, Page told Holyrood’s culture, tourism, Europe and external affairs committee, which is investigating the impact of Brexit on the devolved parliament.
Theresa May, the prime minister, said on Sunday she planned to transpose all EU legislation into UK law when her government repeals the 1972 European Communities Act. Scottish ministers would need to watch carefully to make sure that did not take away existing powers, Page said.
“In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish parliament should be alert to the need to close should UK ministers be given the power to revise EU law in the devolved areas,” he said.
The professor said Brexit would still leave Westminster and the UK government in control of the bulk of EU powers, including over trade, free movement of workers and employment law, banking and services within the UK.
It was likely, he said, that the Scotland Act, which sets out Holyrood’s powers, would need to be overhauled to clarify the extent of the Scottish parliament’s autonomy and the need for UK approval after Brexit.
Ministers will also need to invest heavily in new regulators and expertise in many of these areas, to take on policy areas currently controlled by the EU.
Jackson Carlaw, the deputy leader of the Scottish Conservatives, said there was a risk that if Scotland was too out of step with the UK on some areas, it would damage trade deals. Even so “there are tremendous opportunities without the EU being a controlling authority, for the Scottish parliament to have much more control over many of the areas which come back to the UK”, he said.
