Inter-governmental Relations: Clearing the smoke or stuck in the glue?
Recent developments on two topics are telling different stories on how inter-governmental relations within the UK are evolving in the light of the greater freedom of devolved authorities to go their own way now that they are no longer bound by the shared constraints of EU law. Whereas in relation to controls on vaping the picture has been one of collaboration and walking in step, on the banning of glue traps dispute has arisen between Edinburgh and London, whilst the earlier arguments over the deposit and return scheme may be re-energised.
Background
At the end of last century, the devolution settlements were designed on the basis of the UK continuing to be part of the European Union. This meant that there was no need to address some difficult questions, both on international relations, such as trade across the border in Ireland, and on handling the consequences of potentially increasing regulatory divergence within the UK. The answer to these was provided by the common requirement for all governments to keep within the parameters set by EU rules on the single market. While there was some scope for local divergence, disruptive inconsistencies would not arise, or would be resolved through EU mechanisms. Following the UK’s withdrawal from the EU two quite different visions for how such problems are to be avoided or resolved have emerged.
Cooperation
The first is based on cooperation and agreement. To some extent crystallised in the network of Common Frameworks, the idea is that on matters where maintaining a consistent position across the whole UK is desirable, this should be a matter of discussion and agreement between the various governments. The Common Frameworks themselves have proved to be more limited in scope and operation than envisaged, but a good example of this approach is progress on controlling vaping, with a particular focus on young users and disposable vapes. A consultation including restrictions on the sale of vapes was issued jointly by all four governments in the UK and progress is now being made towards legislation, including draft regulations in Scotland. This offers a clear example of the different administrations working together to achieve a common goal, leading to each exercising their powers in a co-ordinated manner.
Conflict
A contrasting approach rests on the United Kingdom Internal Market Act 2020, an Act passed without consent from the Scottish and Welsh parliaments and operating on the basis of not allowing national differences to obstruct a single market for goods and services across the UK. The market access principles (mutual recognition and non-discrimination) in effect mean that if a product is lawfully available in any one part of the UK it must also be available in all of the others. Individual administrations can still legislate to impose restrictions such as a ban on use, manufacture or sales within their jurisdiction, but these will not prevent goods being supplied from other parts of the UK. In practice, the size of the English market means that it is the devolved administrations that face the effectiveness of their regulatory interventions being significantly undermined if the London government adopts a different position.
Exceptions can be made, as happened belatedly to enable the Scottish ban on single-use plastics to come into effect as intended without being by-passed by goods supplied from elsewhere in the UK. This, however, relies on the UK government agreeing to take the necessary steps. Such agreement has not been forthcoming in relation to the supply of glue-traps which are being banned in Scotland but merely subject to licensing in England; since similar legislation in Wales bans only the use of such traps, not their sale or supply, it did not raise the internal market issue. The Scottish Government’s response has been to protest, both at the length of time taken for the UK Government to come to any decision as the relevant legislation made its way through the Scottish Parliament and at the reasons given for refusal.
In particular, it is noted that the refusal to grant an exception was said to be based on an assessment of the relative effectiveness of a ban on sales as opposed to controls on use and possession and the view that the policy aim could be achieved without the need for an exemption. The Scottish Government argues that this is trespassing on policy matters for the Scottish Parliament to assess, rather than matters affecting the operation of the internal market in an area where “the trade and economic impact is negligible to non-existent”. That such a decision can be made also highlights the strictness of the Internal Market Act’s approach, in contrast to that under EU law where any overriding of national rules to maintain the EU’s single market has to pass a proportionality test. The scope for devolved administrations to implement their own policy choices effectively seems to be as restricted as critics of the Act feared.
Tensions over exemptions had appeared last year in relation to deposit and return schemes. The UK Government refused the Scottish Government’s request for an exemption including glass, leading to the Scottish Government postponing the introduction of its scheme for bottles, cans etc. that extended beyond the aluminium, steel and plastic that is envisaged as the scope of schemes in other parts of the UK. Work was supposed to be progressing towards an agreed implementation plan in 2025, but unilateral comments by the UK Minister that this might be delayed until 2027 (subsequently confirmed) led to further complaints from the Scottish Minister.
Where now?
The scope for difference lies at the heart of devolution but the challenge of reconciling this with the social and economic advantages of coherence and alignment on many issues (both of policy and implementation) has been recognised since the advent of devolution. The consequences of EU membership allowed this to be largely ignored since the constraints of EU law provided a general dampener limiting how far any administration could go its own way. Removal of that constraint means that the challenge must now be squarely faced and unfortunately the chaotic and bitterly divisive Brexit process has not helped the position.
Cooperation and smooth joint working are possible as the progress on vaping has shown. Yet the Internal Market Act’s strict approach, and the dominant position it emphasises for the UK Government, continues to give rise to dispute over both substance and process, as shown with both glue-traps and deposit and return. Inter-governmental relations, ideally involving both collaboration and respectful treatment of legitimate differences, are central to the effective operation of any devolved or federal system, but it seems that we have some way to go yet before a good working relationship is reached.
The new inter-governmental arrangements introduced a couple of years ago have not transformed the position, but the picture keeps changing. The re-engagement of the authorities in Northern Ireland, new ministerial personnel in Wales and Scotland and the prospect of electoral impacts at UK level all offer opportunities to get out of the current rut. Sadly, though, there are bitter political arguments, constitutional, economic and social, which are likely to continue to create obstacles.
