There is a constitutional curiosity in the UK Government’s Internal Market Bill which professor Michael Keatings, Centre for Constitutional Change director, has identified, and is worth reflecting on.
Until now the UK Government operated a system of powers which was fundamentally different from that of the EU. Some powers are reserved and some are devolved, but there is no hierarchy in which powers exert authority over the other in terms of their competence. The UK Parliament ultimately has the power to take competencies back from the devolved parliaments, but there was no over-riding mechanism whereby, for instance, a UK Parliament law would supplant a Scottish Government law. On the other hand, EU law is based on a clear hierarchy.
“In areas where the EU is competent, its laws prevail over both state and sub-state law,” Keatings’ writes. “Its competencies have expanded over the years, especially in pursuit of the Internal Market programme.”
But now that the UK is extricating itself from EU laws, it is in turn “importing the logic” of the EU system into its own internal market.
“It gives ministers powers to regulate a potentially wide range of otherwise devolved matters in the name of the internal market, a concept which the UK Government itself will define and elaborate, with the assistance of the Competition and Markets Authority, which it appoints,” Keatings’ writes. “Ministers will gain sweeping powers and can get more, through statutory instrument rather than primary legislation.”
As the UK state replaces the power structures of the EU state, it replicates their form, and thereby transforms its own system in the process.
Most immediately, this is likely to make a big difference in an area like food standards, whereby Scottish Parliament legislated food standards would have no affect upon the standard of food imported into Scotland, as the rules of the UK internal market would be competent at that point, which state that if goods or service providers or professional practitioners meet the standards in one part of the UK, they can trade on that basis in every part of the UK.
“These rules would not prevent the devolved parliaments from making laws within their areas of competence, as they do now. But they are likely to affect the extent to which these laws could make a difference,” University of Edinburgh professor of politics Nicola McEwan writes.
With a UK-US trade deal looming, a race to the British bottom on standards is indeed a threat to Scottish food, with domestic producers potentially having to compete with imports which do not have to operate to the same standards and thus have cheaper production costs, but it can be extrapolated to almost every area of devolved competence.
Of course, the Scottish Government has already been used to legislating within the limits of its position in the hierarchy of competencies in relation to EU law. Ministers regularly cite EU State Aid, Procurement rules or Competition Law as the reason why they can’t do X, Y or Z. But there was some hope that: a) some of these powers would be returned to Holyrood not grasped by Westminster, and b) that there would be a flatter system of competencies, rather than a new hierarchy between Westminster and the devolved parliaments. But as the UK Internal Market Bill clearly states, the UK is a “unitary state”. With the Bill passing its first vote in the House of Commons on Monday, welcome to the new Britain.
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