After Brexit: The UK Internal Market Act and devolution
Devolution has benefitted Scotland hugely, allowing decisions that matter to people in Scotland to be taken here. Developments since the Brexit vote put this at risk - culminating in the UK Internal Market Act, which directly constrains devolution. This paper explains why and the choice we now face.
Annex D: Overview of key exclusions to the UK Internal Market Act
Potential Exclusion |
Explanation |
Provision in the Act |
---|---|---|
Statutory provisions already in force |
The market access principles concerning goods are limited in their application to new statutory provisions and not ones already on in force on 30 December 2020, although they will apply at the point of a substantive change to existing regulation. Broadly similar limitations apply to services restrictions. |
|
Sale of goods for purpose of performing a function of a public nature |
For example, the supply of medication for prescriptions is excluded from the mutual access principles. |
|
Common frameworks: "certain cases, matters, requirements or provision" within a framework |
UK Ministers may use the delegated powers to change what is in schedule 1 and schedule 2 to exclude specific parts of frameworks – only with agreement of all administrations; and ultimately UK Ministers can choose whether or not to exercise powers in this respect. |
|
Public health emergency |
The mutual recognition of authorisation requirements for services does not apply to the extent a requirement can be justified as a response to a public health emergency (for example COVID-19). |
|
Non-discrimination: legitimate aim |
Indirect discrimination can be justified (in the case of goods) if it is necessary to achieve a legitimate aim:
Indirect discrimination can be justified (in the case of services) if it is necessary to achieve a legitimate aim:
|
|
Certain professions: school teaching; legal professions Statutory provisions already in force |
"School teaching" is excluded from mutual recognition of professional qualifications (the automatic recognition principle). As too are certain "legal professions". For Scotland, that means "the profession of advocate, solicitor, notary, conveyancing practitioner, executry practitioner or commercial attorney"; and across whole of the United Kingdom, "the profession of patent attorney or trade mark attorney." Section 27(1) also contains a limitation for statutory provisions already in force that is broadly similar to the ones mentioned above. |
|
Schedule 1: specific goods exclusions from market access principles |
Threats to human, animal or plant health Market access principles do not apply to legislation if it meets certain conditions:
Chemicals Certain chemical regulations are excluded as per specific articles within REACH (The EU regulation adopted to improve protection of human health and the environment from risks posed by chemicals, while enhancing the competitiveness of the EU chemicals industry). Fertilisers and pesticides Certain regulations are excluded relating to fertilisers and pesticides that fall within Article 15(1) of Regulation (EC) No 2003/2003 (retained law) or under section 74A(1) of the Agriculture Act 1970 so long as regulations can be justified as a risk to the health or safety of humans, animals, plants or the environment. Taxation Legislation is excluded that relates to the imposition of, any tax, rate, duty or similar charge. |
|
Schedule 2: specific services exclusions |
Excluded from mutual recognition principle:
Excluded from non-discrimination principle:
There are also specific exclusions related to taxation. |
Contact
Email: Eilidh.Macdonald@gov.scot
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