Thread by @GeorgePeretzKC

A bit of background on this. (And if you don’t want to £ for The Times, the i has the same story here ) independent.co.uk/news/uk/scotti…

https://twitter.com/timesscotland/status/1774712847802540529

See also @scotgov’s letter to @DefraGovUK here. gov.scot/publications/g…

As you can see, the Scottish Parliament wants to pass a law banning the sale of glue traps.

In England, under the Glue Traps (Offences) Act 2022 setting a glue trap to catch a rodent is an offence.legislation.gov.uk/ukpga/2022/26

But you can be licensed to do so (see s.2) “if there is no other satisfactory solution” to preserving public health or safety.

Presumably for that reason, the sale of glue traps is not banned, in England.

Regulation of methods of rodent control is not a reserved matter in 🏴󠁧󠁢󠁳󠁣󠁴󠁿 (or 🏴󠁧󠁢󠁷󠁬󠁳󠁿). So it’s up to the Scottish Parliament or Senedd to decide the rules. (And the 2022 UK Parliament legislation applies only in 🏴󠁧󠁢󠁥󠁮󠁧󠁿.)

So you might suppose that the Scottish Parliament can simply legislate here without needing UK Government approval, and be wondering what is going on. To understand that, you need to understand the UK Internal Market Act 2020 (UKIMA).

You probably won’t want to buy the book on it, excellent read though it is. So I’ll explain. books.google.co.uk/books/about/Bl…

UKIMA was designed to deal with a post-Brexit problem, namely the possibility that devolved legislatures might use their powers to regulate in a way that threw up unjustified barriers to trade.

Most federal systems have (sometimes not very good) ways of dealing with the tension between regional (etc) autonomy and not wanting internal barriers to trade. But in the UK, nothing was done about that at the time of devolution.

Why not? Well, EU law did the job. EU rules on free movement of goods and services limited the extent to which (for example) the Scottish Parliament could regulate in a way designed to favour Scottish products over German ones - or, in practice, over English ones.

Or, indeed, the extent to which it could ban the sale of certain products entirely.

But of course in 2020 those EU constraints vanished.

UKIMA replaced them.

Focusing on the issue of restrictions on the sale of goods, s.2 of UKIMA sets out a “mutual recognition principle” .legislation.gov.uk/ukpga/2020/27/…

That principle is (in relation to an absolute ban on sales) that if a good produced in or imported into one part of the UK (here, England) can lawfully be on sale there, it can be sold in any other part of the UK (here, Scotland).

And s.2(3) means that the Scottish ban doesn’t apply to the English (or foreign) good. If any Scottish official tried to enforce the ban to such a good, the producer or shop could go to court and get the enforcement struck down.

NB s.2 applies not just to outright bans but also other restrictions on sale (see s.3 for a list): so if Scotland banned sales of glue traps save under certain conditions, or required the sale to be registered, that would also be caught.

Now, nothing in UKIMA stops Scotland applying a ban to Scottish-produced glue traps. Scottish producers aren’t helped (in Scotland) by s.2.

But - of course - a ban only on Scottish-produced glue traps is pretty pointless.

Now, and importantly - and in contrast with EU law - there is no broad public interest ground available to the Scottish government enabling it to justify and defend the ban.

Very limited public interest grounds are set out in Schedule 1. . They don’t include rodent welfare. (Or much else: essentially just pest and disease control + a couple of other things.)legislation.gov.uk/ukpga/2020/27/…

But there is a way through: a UK minister can add to Schedule 1: s.10(2). legislation.gov.uk/ukpga/2020/27/…

Here, the UK minister has refused, because (essentially) he thinks the ban on sale is a bad idea and the English approach is better.

But, you say, isn’t this a devolved matter? Shouldn’t decisions on whether a sales ban in Scotland is a good idea be taken in Edinburgh?

Well, quite.

And also note the asymmetry of this. What if the shoe were on the other foot? What if Scotland had the English ban (restriction on use, no sales ban) but UK ministers, acting for England, put a sales ban for England through Parliament?

It would be pointed out that UKIMA would mean that a Scottish-produced glue trap could be sold in England, notwithstanding the English ban: s.2 UKIMA.

However, for a UK minister acting for England, this isn’t a problem. Two possibilities. 1. Insert something in the Act banning the sale of glue traps in England an extra provision disapplying UKIMA (something the Scottish Parliament can’t do, as UKIMA is a “protected enactment”).

2. Use s.10(2) UKIMA - a power reserved to a UK minister - to add “banning glue traps in the interests of animal welfare” to the Schedule 1 UKIMA list.

That asymmetry - which means, in effect, that UKIMA constrains only the devolved Parliaments and never Westminster acting for England - is a key reason why UKIMA was and is opposed by the devolved governments.

EU law applied equally, and was less restrictive: UKIMA is more restrictive, and though in form applies equally, in practice it doesn’t.

(Final note: if you are wondering how all this applies to Northern Ireland given the Windsor Framework, you really have been paying attention. ⭐️⭐️⭐️. The answer: it’s complicated, but in the end UKIMA yields to the WF and the application of EU law in NI. See Part 5 of UKIMA.)

PS I agree with @AileenMcHarg. More importantly than either of our views is that @WelshGovernment has been unhappy about these aspects of UKIMA from the get-go - and there’s an argument about the compatibility of UKIMA with devolution waiting for an occasion to run it.

https://twitter.com/aileenmcharg/status/1774716092394377272

@AileenMcHarg @WelshGovernment Here is the argument, as set out in Counsel General for Wales (the appellant) v SoS BEIS . (The CA said it was premature to decide the issue absent an actual example.) bailii.org/ew/cases/EWCA/…