At this stage a debate about the post-Brexit UK Internal / Single Market is unlikely to generate much heat or light – expect for possibly amongst a select band of constitutional lawyers and academics and the most committed of political anoraks. And yet the UK government’s July white paper on the subject has the potential to radically re-fashion how public services are delivered across the UK and to finally precipitate the disintegration of the United Kingdom. The implications of the Northern Ireland Backstop will be small beer compared to the possible fallout from these UK Internal / Single Market proposals.
Already the UK devolved administrations have expressed their alarm and concern at what the white paper proposes and have demanded a total review of the UK Government’s approach. They see it as a naked power grab by Westminster which will put the UK’s devolution settlement into a rapid reverse gear.
Until the end of the present Brexit Transitional Period the EU Single Market rules will still prevail. They guarantee the free movement of goods, capital, services, and labour, known collectively as the “four freedoms” and a level regulatory playing field in areas such as agriculture, fisheries, food standards and environmental policy. This is policed by the EU Commission and the EU Court of Justice. While this external regulation was an unacceptable pill to swallow for hardline Brexiteers, in the main it was judged as fairly objective, detached and objective legal process. But with the end of the Transition Period this framework will disappear.
The four UK Governments up to now have agreed the need to for a collaborative approach to provide UK citizens and business with high and consistent standards in key areas such as the employment law, movement of good and people, environment and animal welfare. And there seemed to an acceptance to respect the devolution arrangements that have evolved within the UK over the last two decades along with a shared view on the need to develop “Common Frameworks” and dispute resolution procedures which provided for a parity of esteem and safeguards for all parties.
But the white paper on The UK Internal / Single Market is a very much a “made in Westminster” document reflecting the ideological and policy preferences of the present Tory Government. And this lack of common and shared ground with the devolved administrations has generated the hostile reception that it has received.
At its heart the white paper proposals is a Westminster legislative route with the use of the courts as a means of dispute resolution. The lack of a clear process for the participation devolved administrations creates the risk that many areas of devolved policy could find themselves subject to the demands of the UK Internal Market. There is a lack of clarity about which matters should be left to market competition and which matters might be subject to regulation on social, public health or environmental grounds. These are essentially as much political issues as they are technical implementation processes. But where will the judgements lie?
The risks are even greater as the UK Government itself will remain the final arbiter in international trade and treaties. As these treaties will be binding on all of the UK, the lack of a means to involve the devolved administrations could means – “Westminster rules, like it or lump it”. The track record of the Westminster Government of involving the devolved administrations in the Brexit process or even the response to Covid-19 does not bode well for any set of arrangements that are not copper-fastened by firm commitments to respect the devolution settlement in the UK and which work with the devolved administrations as equal partners.
Seeking to address these concerns will overlap with the UK’s final departure from the EU regulation at the end of this year and will in turn run into next spring’s elections for the Scottish Parliament and Welsh Senedd. There they are bound to take on additional significance as voters will also be having an opportunity to also cast a judgement on the performance of Boris Johnson’s Tory administration to date.