UK Internal Market (L26) Flashcards
What is the problem of regulatory divergence?
Upon Brexit, where do powers over the regulation of trade in goods and services sit - are they reserved or devolved?
Basic principle is that all powers not expressly reserved are devolved.
But could newly repatriated regulatory powers over goods and services be used by DAs to disrupt the integrity of the UK’s internal market?
What was solution #1 to the problem of regulatory divergence (the EUWA 2018, s12)?
New power in EUWA 2018 enabling UK ministers to “freeze” a repatriated regulatory power, “holding” it at UK level so that it could not be exercised by a DA(devolved administration).
UK ministers claimed they did not want to have to use s12 power and that all repatriated regulatory powers could pass to the DAs without having to rely on the s12 power - but only if Common Frameworks agreed between the four administrations.
The s12 power was time-limited - available to UK ministers only for two years from exit day.
Was never used, repealed in March 2022.
What was solution #2 to the problem of regulatory divergence (Common Frameworks)?
Negotiated agreements between the UK, Scottish, Welsh and NI Govs as to how newly repatriated regulatory powers will be exercised so as to:
(a) maintain the integrity of the UK internal market and;
(b) allow regulatory divergence within the competence of each DA.
More than 30 CFs have been agreed e.g. fisheries management, public procurement.
Modest parliamentary oversight: led by HL Scrutiny of CFs Committee.
What was solution #3 to the problem of regulatory divergence (the UK Internal Market Act 2020)?
As regards goods (Part 1 of the Act, ss1-16), provides for two “market access principles” (s1):
Mutual recognition (ss2-4).
Non-discrimination (ss5-9).
What is the mutual recognition principle?
UKIMA 2020, s2: goods produced in or imported into one part of the UK which can be sold there should be able to be sold in any other part of the UK “free from any relevant requirements…”
Such requirements are rules that would prohibit sale because they relate to the characteristics of the good themselves etc.
What is the non-discrimination principle?
UKIMA 2020 s5: the sale of goods in one part of the UK should not be affected by requirements that directly or indirectly discriminate against goods made in another part of the UK.
Direct discrimination = requirements that disadvantage goods from another part of the UK compared with “local goods” (s7).
Indirect discrimination = requirements that apply to incoming goods in a way that places them at a disadvantage where this “cannot reasonably be considered a necessary means of achieving a legitimate aim” (s8(1)(d)).
What is the issue with the non-discrimination principle?
Other than re indirect discrimination, it excludes a proportionality principle; and
It could allow for a “race to the bottom”.
How does EU law deal with the problem of regulatory divergence?
Through the doctrine of proportionality - as seen, e.g. Scotch Whisky Association v Lord Advocate [2017] UKSC 76.
What happened in the case of Scotch Whisky Association v Lord Advocate [2017] UKSC 76?
A(MP)(S)A12 imposed minimum unit pricing for alcohol in Scotland.
Challenged by SWA as interference with free movement of goods under EU law.
Held: it was a “restriction” on free movement of goods within meaning of A34 TFEU.
But it was justified on grounds of “protection of health” (under A36 TFEU) as, it was a proportionate measure for SP to have taken under the circumstances.
Were the Scotch Whisky Association to take place now, how would the UK Internal Market Act govern it?
Minimum unit pricing would not engage the mutual recognition principle, as it is a requirement as to price, not as to the characteristics of the goods themselves nor as to presentation etc.
But it would engage the non-discrimination principle.
It would be indirect, not direct discrimination. Therefore, would be permitted if the test in s8(1)(d) is satisfied - which, presumably, it would be. Therefore, the policy would seem to be lawful under UKIMA, as it was under EU law.
