Publication - Strategy/plan

After Brexit: The UK Internal Market Act and devolution

Published: 8 Mar 2021

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.

After Brexit: The UK Internal Market Act and devolution
Annex D: Overview of key exclusions to the UK Internal Market Act

Annex D: Overview of key exclusions to the UK Internal Market Act

Potential Exclusion

Explanation

Provision in the Act

Statutory provisions already in force

The market access principles concerning goods are limited in their application to new statutory provisions and not ones already on in force on 30 December 2020, although they will apply at the point of a substantive change to existing regulation. Broadly similar limitations apply to services restrictions.

Part 1; section 4

Part 1; section 9

Part 2, section 17(5)(c)

Sale of goods for purpose of performing a function of a public nature

For example, the supply of medication for prescriptions is excluded from the mutual access principles.

Part 1, section 15

Common frameworks: "certain cases, matters, requirements or provision" within a framework

UK Ministers may use the delegated powers to change what is in schedule 1 and schedule 2 to exclude specific parts of frameworks – only with agreement of all administrations; and ultimately UK Ministers can choose whether or not to exercise powers in this respect.

Part 1; section 10

Part 2; section 18

Public health emergency

The mutual recognition of authorisation requirements for services does not apply to the extent a requirement can be justified as a response to a public health emergency (for example COVID-19).

Part 2; section 19

Non-discrimination: legitimate aim

Indirect discrimination can be justified (in the case of goods) if it is necessary to achieve a legitimate aim:

  • the protection of the life or health of humans, animals or plants, or
  • the protection of public safety or security.

Indirect discrimination can be justified (in the case of services) if it is necessary to achieve a legitimate aim:

  • the protection of the life or health of humans, animals or plants,
  • the protection of public safety or security, or
  • the efficient administration of justice.

Part 1; section 8

Part 2; section 21

Certain professions:

school teaching; legal professions

Statutory provisions already in force

"School teaching" is excluded from mutual recognition of professional qualifications (the automatic recognition principle). As too are certain "legal professions". For Scotland, that means "the profession of advocate, solicitor, notary, conveyancing practitioner, executry practitioner or commercial attorney"; and across whole of the United Kingdom, "the profession of patent attorney or trade mark attorney."

Section 27(1) also contains a limitation for statutory provisions already in force that is broadly similar to the ones mentioned above.

Part 3; section 27

Schedule 1: specific goods exclusions from market access principles

  • Threats to human, animal or plant health
  • Chemicals
  • Fertilisers and pesticides
  • Taxation

Threats to human, animal or plant health

Market access principles do not apply to legislation if it meets certain conditions:

  • It has the aim of preventing or reducing the movement of a pest or disease where it is present in the affected part and is not present (or is less prevalent) in the restricting part. This is where the movement of the threat poses (without legislation) a serious threat to the health of humans, animal or plants in the restricting part.
  • It aims to prevent the movement of unsafe food or feed into the restricting part from the affected part, which poses a serious threat to humans or animals in the restricting part.
  • Where discriminating against incoming goods can reasonably be justified as "a response to a public health emergency" ("an event or situation that is reasonably considered to pose an extraordinary threat to human health in the destination part").

Chemicals

Certain chemical regulations are excluded as per specific articles within REACH (The EU regulation adopted to improve protection of human health and the environment from risks posed by chemicals, while enhancing the competitiveness of the EU chemicals industry).

Fertilisers and pesticides

Certain regulations are excluded relating to fertilisers and pesticides that fall within Article 15(1) of Regulation (EC) No 2003/2003 (retained law) or under section 74A(1) of the Agriculture Act 1970 so long as regulations can be justified as a risk to the health or safety of humans, animals, plants or the environment.

Taxation

Legislation is excluded that relates to the imposition of, any tax, rate, duty or similar charge.

Schedule 1

Schedule 2: specific services exclusions

Excluded from mutual recognition principle:

  • Audiovisual services
  • Debt collection services
  • Electronic communications services and networks, and associated facilities and services
  • Financial services
  • Gambling services
  • Healthcare services
  • Legal services
  • Notarial services
  • Private security services
  • Services of temporary work agencies
  • Services provided by a person exercising functions of a public nature or by a person acting on behalf of such a person in connection with the exercise of functions of a public nature
  • Social services relating to social housing, childcare, adult social care and support of families and persons permanently or temporarily in need
  • Transport services

Excluded from non-discrimination principle:

  • As above, except legal services, plus
  • Postal services
  • Services related to electricity production and supply
  • Services related to natural gas production
  • Waste services
  • Water supply and sewerage

There are also specific exclusions related to taxation.

Schedule 2


Contact

Email: Eilidh.Macdonald@gov.scot