After Brexit: The UK Internal Market Act and devolution

Devolution has benefitted Scotland hugely, allowing decisions that matter to people in Scotland to be taken here. Developments since the Brexit vote put this at risk - culminating in the UK Internal Market Act, which directly constrains devolution. This paper explains why and the choice we now face.


by Michael Russell MSP
Cabinet Secretary for Constitution,
Europe and External Affairs

The Scottish Government believes the best future for Scotland is to become an independent country.

Developments since the Brexit referendum in June 2016 have dramatically changed the context in which that debate on Scotland's future is taking place.

Scotland has been removed from the EU against the will of the overwhelming majority of people who live here.

Much of the focus continues to be on the direct impact of that decision on Scottish society and on the economy.

However, there has been another dramatic change since the Brexit vote: the steady and systematic undermining of devolution and the Scottish Parliament.

Supporters of Brexit said it was about "taking back control". Increasingly we can see they meant Westminster taking back control from Scotland.

Bit by bit, the settlement that secured 74% support in the 1997 devolution referendum, is being unpicked under the cover of Brexit and without the consent of the Scottish people.

This is not a big bang abolition of the Scottish Parliament. Westminster has instead put in train the slow demise of devolution in the hope that no-one will notice.

The Prime Minister himself has called devolution "a disaster". The Leader of the House of Commons has spoken of restoring the UK constitution to what he calls is its "proper form" and has signalled his desire to "undo" devolution.

This document sets out how that undoing is under way:

  • The Scottish Parliament's views on Brexit have been ignored by the UK Government.
  • Terms of reference designed to agree Brexit negotiating objectives among the UK's four governments were disregarded.
  • The UK Government and Parliament now regularly legislate in devolved policy areas without the consent of the Scottish Parliament.
  • The EU Withdrawal Act constrains the powers of the Scottish Parliament in what was called a "power grab".
  • UK Government Ministers have taken powers to spend in devolved areas - in effect a "funding grab".

Most alarming of developments since Brexit, the Westminster Parliament has recently passed the Internal Market Act, which substantially weakens the ability of the Scottish Parliament to legislate effectively in devolved policy areas.

This Act gives a UK Government Minister the power, at a stroke of his or her pen, to subject Scotland's NHS to what are called "market access" principles, by unilaterally changing the scope of the legislation.

This is a particularly worrying development given the UK Government's baffling refusal to include in its Trade Bill or, to our knowledge, other agreements being negotiated separately, protection for "a comprehensive publicly funded health service free at the point of delivery".

The Internal Market Act means that if chlorinated chicken and hormone-injected beef are accepted for sale in England after a trade deal with the US, then they would have to be accepted for sale in Scotland too.

And any future legislation in Scotland to ban single use plastics and the environmental damage they cause, or measures to tackle health issues such as obesity, could be rendered ineffective.

Given the direction of travel, who knows what further restrictions on the Scottish Parliament could be on the way?

The Scottish Government believes people in Scotland have the right to decide their own future.

In this respect, it is important to set out that the choice we are facing is not between independence and the possibility of a beefed up Scottish Parliament or even the status quo.

The choice now, bluntly, is about saving the Parliament and the powers that people voted for in 1997.

The Scottish Parliament can go forward with independence, protecting and enhancing its existing powers – or it can go backwards, with Westminster stripping it of much of the democratic authority it has enjoyed for two decades.

The choice is now that stark – there is no other.

Michael Russell MSP
Cabinet Secretary for Constitution, Europe and External Affairs



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