The Internal Market Bill and the Future of the Union – “A Full-Scale Assault on Devolution”?

By Sophie Evans

Against the backdrop of a global pandemic that has seemingly put the world on pause, Brexit and specifically the issue of the Internal Market Bill have continued to dramatically unfold. The Scottish parliament has recently voted against consenting to the controversial and international law-breaching piece of U.K. legislation introduced by the Johnson government in early September. Scottish MSPs voted 90 to 28 against the bill with SNP, Labour, Lib Dems and Greens voting to reject it, and the deputy labour leader denouncing it as a “full on attack on the existing devolution settlement”.  Much of the media’s focus has been on the contentious Bill’s implications for the Northern Ireland Protocol, instead of the equally critical dimension of reverberations for devolution, especially in Scotland. Preceding these considerations, is the widespread confusion to what this bill actually is, how it breaks the law and why the devolved administrations are quite so vehement that it does not pass.  

In the simplest of terms, the Internal Market Bill intends to maintain a cohesive market between all four U.K. nations – meaning that there is no limitation on trade by regulations imposed by each devolved administration. This concept harks back to the 1706-1707 Unions between England, Wales and Scotland which ensured that there was ‘open and unhindered trade’ across the UK nations. When the U.K. joined the European Economic Community (EEC) in 1973, British trade laws were replaced by European laws. The devolution of powers to Scotland, Wales and Northern Ireland was made in the context of E.U. membership and as such these administrations could not contradict E.U. law. Brexit complicates this matter. Now rules and regulations on matters like air quality and animal welfare will no longer be settled in Brussels but on the home front. As a result, many powers (a total of 111) are set to be controlled directly by Scottish, Welsh and Northern Irish administrations. So, what’s the problem? 

The issue stems from the fact that the U.K. government will replace the E.U.’s role as unadulterated mediator of trade policies. The bill’s proposed legislation of mutual recognition – certifying goods, services and qualification can be used throughout the U.K. – and its non-discrimination laws that prohibit any of the devolved nations’ governments introducing rules that could favour trade with one part of the U.K. over another, are intended to ensure that there is barrier-free access to the internal market. Indeed, this ensures that post-Brexit trade deals can be secured with the assurance that the U.K. all follows the same agenda. The devolved administrations will thus have to accept goods and services from other parts of the U.K. even if they have standards of their own – and they fear that this could mean lower standards will be thrust upon them.  

MSPs from the SNP, Labour and Greens see this move as a shameless ‘power grab’ from the U.K. government that seeks to undermine and threaten the powers of the devolved governments. For example, if Scotland attempted to ban the use of MSG in canned foods or meats, it would not be able to stop imported goods coming in from England and Wales. Instead, these items would continue to enter the Scottish market and the Scottish parliament would be powerless to prevent it. In the eyes of the Scottish MPs, this is not how devolution is meant to work.  

One such fear that has been repeatedly voiced in Holyrood is that of a U.S.-U.K. trade deal allowing the importation of chlorinated chicken into England which would then be permitted into Scotland and Wales. Scottish conservatives argue that the bill is a purely pragmatic move – and one that keeps the economic interests of the nation at its core. They assert that protecting the 550,000 jobs dependent on trade from the rest of the U.K. should be at the precipice of the issue. Scottish Tory Dean Lockhart was quick to point out that 60% of trade in Scotland depends on the internal market – and that stakeholders like the CBI and NFUS have provided evidence that the internal market is more important that the E.U. and rest of the world put together. Why shouldn’t Scotland back this bill, considering it protects trade? And on the matter of chlorinated chickens – well, far too much attention has been paid to ‘constitutional scaremongering and hypothetical concerns’ as Lockhart put it. The U.K. government has already denied they will be doing any such thing – with Michael Gove proclaiming it was “to the birds” to assert that the U.K. would “compromise on animal welfare standards”.  

It is clear from this that MSPs against the bill are most concerned with losing the powers given to them via the devolution acts. But one can argue that these acts stated the devolved administrations were constrained by E.U. law which was negotiated by the U.K. government on their behalf in the E.U. Council of Ministers anyways – so has decision making power remained largely in place? Nevertheless, there is undoubtable truth in the fact that the new bill and any disputes it creates will be settled by a third-party forum which could be seen as being yet another means of removing decision making power from the hands of the devolved powers. 

MSPs instead argue the bill should be scrapped, as a voluntary common frameworks process was already in place to deal with negotiating agreed standards, a process which despite Brexit tensions has managed to make some progress in the last two years. Though the U.K. government states the bill is meant to deal with any residual areas that may lay outside these frameworks, the necessity of a bill that causes quite so much uproar does come into question.  However, Tories argue the hypocrisy of the situation, as the SNP has made it publicly clear they are more than keen to hand all these powers back to Brussels should they be able to re-join the E.U. as an independent nation. In their view, why kick up a fuss about losing power when you’re more than happy to give it away at the first chance? The plot thickens.  

If the U.K. government decides to continue with the bill, they will be breaking the Sewel Convention which states that the U.K. would ‘not normally’ legislate across devolved areas without their consent. However, as Michael Gove has stated – the current political climate embodies anything but normality. As such, to MSPs this highlights that the UK government is willing to brush aside the interests of the Scottish people and autonomy of Holyrood by passing the bill without their blessing.   

This takes us back to the heart of the issue. With the latest figures showing that only 15% of the Scottish people trust the UK government to act in their interest – what does this mean for the future of the union? Could Boris Johnson be signing the death sentence of the 300-year partnership? Holyrood and Westminster have butted heads repeatedly for the past two decades, and support for the SNP has risen steadily, hitting an all-time high following the 2016 Brexit referendum. The extent to which this issue might cut through to public opinion right now is dubious considering the current pandemic has enraptured most of the nation’s attention, one thing remains for certain – Nicola Sturgeon will surely use this as powerful propaganda to prop up her independence agenda in the coming year. Needless to say, breaking the Sewel Convention will have damaging effects on people that are already mistrustful of the affairs of Westminster. As policy makers meander through the treacherous process of Brexit and trade deal negotiations, the U.K.s precarious relationship with the devolved administrations could prove to be an irreparable casualty. As Scottish Labour’s Alex Rowley warned  ominously to Gove “you will pave the way to independence, not the SNP” – he may just be right.  

The views expressed in this article are the author’s own, and may not reflect the opinions of the St Andrews Economist.

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