Is the Sky Falling on Devolution?

Do the market access principles in the UK Internal Market Bill undermine devolution or is this a 'Chicken Little' moment?

Leaving aside the important concerns about breaching international law, the big area of concern around the United Kingdom Internal Market Bill is its impact on the devolution settlement. But is this concern overstated?  This might be the case in relation to the market access principles introduced by the Bill (and in particular the ‘chlorinated chicken’ and ‘minimum pricing’ problems to which these principles are said to give rise).

Mutual recognition and the 'chlorinated chicken' problem

Let’s take the ‘chlorinated chicken’ problem first. Under the mutual recognition principle for goods introduced by the Bill, food imported into one part of the UK which can lawfully be sold there (because it complies with food standards laws there) should be able to be sold in any other part of the UK free from any additional requirements. Thus, so the argument goes, chlorinated chicken imported into England under a future UK-US trade deal would have to be permitted into Scotland over the objections of Scottish farmers.

However, there is an exception to this principle in the Bill relating to food safety. In particular, were the Scottish Government to have reason to believe that the chlorinated chicken posed a particular risk to human health (a matter on which there is some debate) or was otherwise unfit for human consumption and its importation into Scotland represented a serious threat to human health, then in principle it could restrict its sale in Scotland. Clearly, any such ban could be challenged, but it would be the courts, not politicians, who would have to decide (on the basis of the facts and evidence) whether such a restriction fell within the scope of the exception.

Indirect discrimination and the 'minimum pricing' issue

Turning to the ‘minimum pricing’ problem, the question which has been posed is whether the non-discrimination principle for goods in the Bill (and particularly the version of this principle which prohibits indirect discrimination) would prevent the Scottish Government from maintaining its policy on minimum unit pricing for alcohol. The Bill does create a safe harbour for legislation in place when it comes into force, but it could nonetheless catch similar legislation introduced elsewhere or indeed to a revamped version introduced in Scotland.

The indirect discrimination ban could certainly be engaged by a minimum pricing policy, at least to the extent that the operation of the policy produced an adverse market effect (or, in order words, if it distorted competition by putting alcoholic drinks imported from elsewhere in the UK at a disadvantage when compared to locally produced drinks). However, there is a clear exception to this rule in the case of measures which are necessary in order to achieve a legitimate public health aim. In the case of minimum pricing, of course, the UK courts have previously ruled that just such a justification is applicable under similar EU principles.

Health warning

There is, then, reason to believe that some of the concerns regarding the impact of the Bill on devolution are overstated. However, it is important to bear in mind that, firstly, the Bill could well be amended before it becomes an Act and, secondly, the UK Government is given considerable powers under the Bill to change the way in which the market access principles work in practice. In both these respects, it would be premature to write off concerns about devolution impacts.