After Brexit: The UK Internal Market Act and devolution

Part Six: Conclusion

135. This paper details the Internal Market Act's unprecedented impact on devolution and the UK's constitutional rules and norms. It sets the Act within a wider pattern of developments since the 2016 referendum that bypasses and undermines devolution.

136. It demonstrates that the Act is unnecessary to fulfil its stated purpose of providing regulatory coherence, and clarity and certainty for businesses and consumers. Indeed, it will render these outcomes significantly harder to achieve.

137. The Act does not simply replicate market oversight arrangements common to other devolved and federal states (see Annex A), and is not comparable to the conception and operation of the market access principles in the European single market.

138. The Scottish Government agrees that EU exit, which people in Scotland decisively rejected in 2016, raises a series of complex questions for the UK's constitutional arrangements. However the Act offers, at every turn, the wrong answers to these questions.

139. The Act presents a prospectus for the unilateral exercise of power by UK Ministers that is not necessary, and is incompatible with the aims and purpose of devolution. Stakeholders across Scotland are clear that devolution works: that decisions on farming, the environment, on food standards, public health and many other matters should be made in Scotland, and reflect Scottish circumstances and priorities.

The need for change

140. The approach to devolution taken by successive UK Governments since 2016, and culminating in the Internal Market Act, is unsustainable. EU exit requires a fundamental shift in attitudes to where power lies and is best exercised in these islands, and there is a growing recognition that the status quo ante is not a viable option for future models of UK governance.

141. The scale of change required is significant:

• There would have to be agreement between the UK's constituent parts to manage differences on the basis of equality and respect, not unilateral imposition.
• The permanence of devolution in the UK's constitutional arrangements would need to be recognised, with justiciable protections in law for the powers of the devolved institutions, as is the case in other states. A new legal framework should create these protections, and incentives to resolve any issues by agreement rather than by imposition from Westminster.
• Drawing on the EU model, the principles of subsidiarity and proportionality should apply to any market access rules and principles, where decisions are taken as locally as possible; and the needs of business are recognised, and balanced with those of consumers, citizens, and wider social, environmental and public health priorities.
• The outmoded doctrine of unlimited parliamentary sovereignty – that too often manifests as a presumption of unlimited and unaccountable executive power – should be replaced with a recognition of multiple legitimate centres of powers across these islands.
• There must be wider, meaningful reform to the system of intergovernmental relations in the UK. Current arrangements were widely, and correctly, seen as not fit for purpose long before 2016. Events since then have laid bare their inadequacies. Reform would include measures to manage policy divergence in a manner that prioritises agreement over vetoes, ensures equality between all actors in the system, and seeks to resolve and avoid disputes at the lowest possible level.

142. Unfortunately, as this paper has demonstrated, successive UK Governments have appeared unwilling to recognise the scale and urgency of the need for change. There is no indication that this, or any, UK Government, will be prepared to act in the ways required. Instead, we face the prospect of, at best, another round of inconclusive debates on a "quasi-federal" UK:^[46] debates that are no more likely than their predecessors to address the profound structural challenges facing the UK after Brexit.

143. Events since the EU referendum are instructive. Detailed proposals to ensure an agreed and proportionate approach to EU exit, that recognised Scotland's rejection of Brexit at the 2016 referendum and the need to protect and enhance devolution,^[47] were not taken into account. Instead, a unilateral decision was taken to pursue a hard Brexit for which there was, and indeed is, no majority support in Scotland. The UK Internal Market Act is the crystallisation of this series of events since 2016: an attempt impose permanent institutional uniformity and centralised control.

144. These developments reinforce the Scottish Government's belief that the best future for Scotland is to become an independent country. This would enable a new and better relationship with the rest of the UK on the basis of mutual respect and equal partnership.