“Devolution – and the UK’s territorial constitution – is being reshaped”
– as Scotland’s parliament, government and voters spectate without agency!
By stewartb
It’s been some time since my attention was last drawn to the constitutional significance for Scotland’s parliament and government of the UK Internal Market Act 2020 (UKIMA). The implications of this Act may still not be appreciated fully by many in Scotland.
It is an Act that was passed into law by a Westminster Tory government, the one rejected by majority in Scotland at the ballot box. It was passed into law without the consent of the Scottish Parliament. (But then we know now the protections of devolution from the Sewel Convention are not worth the vellum they’re printed on!) Furthermore, ithe UKIMA is deemed necessary by Westminster only as a consequence of Brexit, something again a majority in Scotland opposed! And it is an Act only required because the Tory government refuses to rely on consensual agreement – so called ‘common frameworks’ – with the devolved administrations. A pattern emerging here?
This blog post is prompted by a new article published by the academic research network, UK in a Changing Europe ((UKCE):
Horsley, T. (2022) Reshaping devolution: the United Kingdom Internal Market Act 2020 – a commentary. UK in a Changing Europe. (https://ukandeu.ac.uk/reshaping-devolution-the-united-kingdom-internal-market-act-2020/ )
The author, Dr Thomas Horsley is Reader in Constitutional Law, University of Liverpool. I’ll come to the findings of this new assessment later but first some more background.
Back on 6 October 2021, for context, I reflected btl on TuS that Labour in Scotland has been acquiescent on the subject of the UKIMA. I added: ‘But Labour Party members in Scotland should reflect on this in Labour List on 9 September 2020, from Labour FM, Mark Drakeford: ‘Mark Drakeford has said that the internal markets bill represents a “smash and grab” on the devolution settlement and takes back powers that have been devolved to Wales, Northern Ireland and Scotland for 20 years. (my emphasis)
‘In a Times Radio interview this morning, the Labour Welsh First Minister discussed the legislation published today, which would grant British ministers with UNILATERAL POWERS after the UK leaves the EU.’
In a later contribution to TuS on 26 July 2021 entitled ‘An example of ‘aggressive Unionism’ – signs of things to come!’ I noted an assessment of post-Brexit actions, notably around the new UK Shared Prosperity Fund, of significance for devolution in NI, Scotland and Wales. This referred to work undertaken by the Institute for Government (IfG).
Source: Institute for Government (2021) The UK Shared Prosperity Fund – Strengthening the union or undermining devolution? IfG Analysis report (https://www.instituteforgovernment.org.uk/publications/shared-prosperity-fund )
I took this among other things from the IfG report at the time:
- … new financial assistance powers in the UK Internal Market (UKIM) Act which allows the UK government to spend money in any part of the UK “with powers covering infrastructure, economic development, culture, sport, and support for educational, training and exchange opportunities”
- the Westminster government is not required to consult with or seek the consent of the devolved administrations to spend money in their territories even though the fund will spend money on matters that lie primarily within the responsibility of the devolved governments
- whilst the UK government has stated that the devolved administrations will have a “place within the governance structures” of the UKSPF, the IfG noted that evidence suggests that this is unlikely to be a partnership model in which the devolved administrations share control over how the UKSPF is spent – ‘As one official noted, “a place in the governance structures’ could mean anything”.’
- the devolved governments are more likely to play only a ‘consultative’ role, on a par with other stakeholders – such as business and local authorities – with limited powers to determine spending priorities or select projects for support.
New insights on UKIMA 2020 and devolution
Returning to the new paper published by UKICE, its author argues that in addressing a post-Brexit ‘regulatory gap’: “the UKIMA effectively ‘transplants’ the basic structures and principles that make up the EU’s internal market into the UK constitution to regulate trade in goods and services within the UK post-Brexit. The parallels between the new UK internal market and its EU counterpart are not exact, but unmistakable nonetheless.”
The author fails to spot that in the development of the EU’s internal market the participating parties were independent nation-states with full negotiating and veto rights, and unfettered rights to end their membership of the EU in extremis at any time if they so wished. In the case of the UKIMA, the affected parties – the three parts of the UK outside England – lacked any such role or agency in these matters.
The author does acknowledges that:
- the UKIMA ‘disrupts the basic approach to managing the co-existence of different sites of legislative power within the UK’
- ‘In a change of approach, the UKIMA establishes the UK internal market as a new shared regulatory space that cuts across the respective competences of the UK and devolved legislatures.’ – I would suggest the word ‘shared’ is being used in a limited kind of way here!
- ‘The UKIMA imposes significant new practical restraints on the regulatory competences of the devolved legislatures.’
- the UKIMAs principles (mutual recognition and non-discrimination) ‘preclude the devolved administrations from applying regulations that they have enacted within areas of devolved competence to goods and services that are in lawful circulation and/or provided in other parts of the UK.’
This issue has already come to the fore with the Senedd’s wish to legislate to ban single-use plastics: ‘the UKIMA’s market access principles will, in principle, preclude the application of that ban to products entering the Welsh market from other parts of the UK.’
- ‘The UKIMA therefore casts a shadow over regulatory autonomy under the existing devolution settlement.’
On the further development and implementation of public policy by governments in Belfast, Cardiff and Edinburgh, the author sets out the new constraints: ’The Scottish, Welsh and Northern Irish administrations must now essentially weigh up the advantages of policy innovation against the competitive disadvantages that may result from their inability to apply new legislation to goods and services entering their respective markets from other parts of the UK. As the largest of the four markets economically and geographically, English regulatory choices will inevitably influence decision-making in Cardiff, Edinburgh and Belfast when making such assessments.’
The author also notes that a separate mechanism exists outside the UKIMA to manage future policy divergence within the UK post-Brexit, namely ‘Common Frameworks’. Crucially, these were established with the consent of the devolved administrations.
However, such consensual mechanisms were insufficient for the Tory government. We then learn this about the UKIMA: ’… it also grants the UK government the power to determine whether or not to exempt agreed Common Frameworks from the application of the UKIMA’s market access principles (s10(3) UKIMA). That is an important concession to the UK government, which it may invoke to override intergovernmental agreement on specific policy issues achieved through the Common Frameworks.’
What an odd way to put it! An Act of a parliament with a majority Tory government includes a ‘concession’ favouring that (and yes, subsequent) Westminster governments! Moreover, it is a ‘concession’ which enables prior agreements to be set aside unilaterally – how very Tory, how very Unionist!
Horsley adds:
- ‘Under the UKIMA, it is UK government ministers who will principally determine the balance between, on the one hand, the market access principles as deregulatory instruments and, on the other hand, the application of UK-wide common standards agreed with the devolved administrations in Cardiff, Edinburgh and Belfast through the Common Frameworks mechanism.’
It is relevant – to say the least! – to remind ourselves that we now have a government in Westminster wedded to deregulation!
The final observation in the UKICE paper is this: ‘Wherever the balance is struck, one thing is clear: the UKIMA makes it more difficult for the devolved administrations to pursue regulatory policies that interfere with considerations of economic efficiency. Devolution – and the UK’s territorial constitution – is being reshaped.’
Indeed it is – whilst Scotland’s parliament, government and voters spectate, still without agency!
Talking-up Scotland 
A colony, in other words.
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Thanks for a most considered report
Which the only and final most certain conclusion that not only a thinking mind can come to but that
Events as they unfold can only lead to a Independent
Scotland and that is based solely on the Universal Law
That NONE can or ever avoid and that is
” You cannot govern without consent ”
This is irrefutable
There is no simpler way of explaining this
5 simple little words of eternal wisdom and the 2nd word is of the highest power indeed
Ah but The Elite who govern are supposedly ” Educated ? ” expensively so
At Private School and Oxbridge
Oh what fools they do churn out again and again and again and again
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Devolved …devolve …devo … d… UKOK !
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Labour claims it accepts Brexit and it is going to ‘make it work’. Accepting for the moment that they can ‘make it work’, extending the principle of charity to Sir Keir Two-flags, he can argue that he is recognising the democratic view of the majority of those IN THE WHOLE UK who voted.
However, like the other Tories he has a very selective view of democracy under the tutelage of Baleful Bodger Broon. The fact that Scotland, Northern Ireland and Gibraltar voted by very substantial majorities to remain in the EU, but are not deemed majorities because of the very large population of England. The fact that since 2015, a majority of MPs elected in Scotland have been for an avowedly pro-independence party, is not by the unionist definition, a real majority despite Mrs Thatcher declaring it was. Despite successive Holyrood, Council and Westminster elections as well as many opinion polls indicating strong support for independence, Labour tells us ‘there’s no appetite for independence in Scotland.’
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Anonymous
Re.Labour and there being no appetite for Scottish Indy.
The actual fact of the matter is
That their no appetite for Labour in Scotland
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John thanks for raising awareness of this issue again. I lost a few ‘Unionist’ friends when I warned them of the consequences of this legislation and the attack on Devolution and our Parliament. They regarded it then simply as SNP propaganda so I hope the ‘ Economic Papers’ being prepared as a prelude to the coming Independence debate will rub the noses of those that believed by rejecting Independence in 2014 we would likely see as wee Gordie put it the most ‘powerful devolved adminstration’.
It simply kicks the Smith Commission proposals and the Sewell Convention into the long grass but as yet another failed promise it can be used to our advantage.
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It’s stewart!
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Oops sorry.. Thanks Stewart.
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As part of the EU there were always regs on standards and you couldn’t go below these. You could though have standards in excess and still make a profit – Aberdeen Angus Beef is one example of how this works. But there were still plenty of producers in the EU who operated to standards lower than this and as long as they met the standards of the EU it was fine. Even back then there was nothing the Scottish Government could do about importation of beef produced to standards lower than Aberdeen Angus (it’s why shops can charge more for Aberdeen Angus) but EU compliant.
So the idea of English produce (chlorinated chicken for instance) being imported and sold in Scotland would have been impossible as part of the EU, not because of anything that Scotland has done (or not) but because of the influence of the European Commission. Brexit takes that influence out of things.
Perhaps even worse, there has been no attempt to replace the central authority of the Commission. Instead, all four parts of the EU can do their own thing, BUT they have to reciprocally allow the other countries to sell their produce in their country even if it doesn’t meet their standards. So if England embraces (so to speak) chlorinated chicken, and attempts to sell it in Scotland (your M&S chicken pie for instance) there is nothing that Scotland can do. Folk will be able to buy it (and probably will). Aberdeen Angus meantime will still have a market – there is a brand recognition even still in the EU, though Brexit makes trading harder.
There are two consequences to this. First it makes a “race to the bottom” if not inevitable then very likely. For instance why does the EU oppose chlorinated chicken? Leaving aside matters of taste, an important reason is why in America chicken is chlorinated at all – its because their animal husbandry and cleanliness standards are hopeless. If you didnt chlorinate the chicken there would be a public health epidemic, so chlorinate it and plaster it in spices. Likewise beef pumped up with steroids – this isn’t to make the beast healthier or taste better but to get more meat per animal and thus make more profit. In the same way, if you don’t have to bother about the health and wellbeing of your birds you can make a bigger profit. It’s all about dosh, and about moving competition from quality to price. You’ll never wipe out quality as a criterion for buying, but the cheaper the poorer quality alternative is the more people will be willing to compromise (especially at times like now).
So why not just say, Westminster is the sovereign Parliament, we’ll call the shots? Why let the devolved nations in even in the minor way that they are? I suspect there are several reasons. Perhaps we are not at a point – yet – where Westminster feels able to move on the proposition that the devolved govts make no contribution for what they cost so lets go back to 1998. But more importantly, if the direction of travel is lower standards, they don’t have to – just pass the appropriate regs that suit England (this doesn’t have to be anti Celt, just pro England) and there is nothing anyone can do. Do you see folk standing around the chicken pies (or just the chickens – M&S sell so many chickens they seem to me to have a mission to wipe the bird out!) wondering if the chicken has been chlorinated. I don’t.
This issue is one of many that I think of as originating in the structure of the UK state. For instance the EU regime worked because it is a very large highly diversified market which the UK is not. The UK is about 10% its size and has much less diversity than say Lithuania and Romania in the EU. Without the ‘floor’ of standards set by the EU, with no central authority, the UK market is just too small and too integrated for four sets of regs to coexist, particularly if one of the partners is far and away the largest and determined to emphasise free trade, focusing on profit rather than quality.
What to do? Well there isn’t a lot that can be done right now. Sure if M&S start using chlorinated chicken that can be made known, but if the cost of a chicken pie (not chlorinated) is twice the cost of one where the meat has been chlorinated, how long is that going to work for? Money doesn’t talk, it screams.
Perhaps the most hopeful possibility stems from Stewart’s quotes by Mark Drakeford. I often wonder how that guy has survived as their FM for as long as he has, given his often off-message quotes, not least that the Union as we know is no longer possible (remember Wendy Alexander’s fate). I suspect the most productive outcome is for the three FMs (though Michelle O’Neill isn’t formally an FM as the Unionists wont form a govt) to work closely together, though they will find what they can do together isn’t much more than they can do apart if Westminster is really determined. Therefore, as before, they will arrive at a point where they either have to stick or twist, “suck it up” (as our Secy of State was heard to suggest) or do something much more radical.
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Excellent contribution. Please someone correct me if I’m wrong but if memory serves me correctly UKIMA also does not enforce adequate labelling of these imported food products so in effect the consumer will not be able to distinguish where eg. other toxic additives (banned elsewhere) that are often added to food products in the USA. Moreover the frequency of food poisoning in the USA is far in excess of what it was in the EU where despite all the chlorination treatments etc 1 in 6 people suffer some form of food poisoning. This is what is ahead of us without the full powers of Independence.
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Essentially yes, that is what lies ahead unless we change it.
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I am not surprised by the interest Talking Up Scotland blogs are receiving when I post them on FB or Twitter. They always give a side to an argument rarely seen on TV or in the British press. This one is really interesting because I’m sure many people do not fully understand how this bill affects Scotland. I have tried to get through to people that our SNHS is at risk because of it but people don’t seem to get it.
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Thanks keltigirl for this. It’s encouraging!
So much is about having the means to aggregate and amplify the the many facets of the case for Scotland’s independence and to counter those with access to much of the corporate media and the BBC that feel the need to ‘Talk Down Scotland’!
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