By Alastair MacIver
THE term “UK single market” has bubbled up in the wake of the Brexit referendum.
It peppers parliamentary motions and speeches by the Scottish Secretary. Scots are repeatedly invited to make a choice between the European single market and its apparent British analogue the “UK single market”.
This description of the British domestic marketplace is new, self-evidently purloined from the language of European integration and does the rhetorical work of presenting the UK as a microcosmic EU, with all of the same goodies in terms of unimpeded trade. This characterisation should be approached with extreme caution.
Indeed, no such “UK single market” currently exists and, in the event of hard Brexit, establishing an effective and lasting one would entail a large expansion of the reserved powers vested in Westminster.
This would see Holyrood lose some of its current powers and miss out on those “repatriated” from Brussels.
Why can we expect Westminster’s authority to expand in this way? In essence, if Holyrood and Westminster are allowed to regulate goods and services separately, obstacles to trade would inevitably be presented if a good or service had to follow different rules on each side of the Tweed.
For example, trade would be impeded if a Carlisle based hairdresser had to acquire a licence to coif in Gretna Green, or if a Scots haggis had to be relabelled to be sold in Berwick. These kinds of obstacles are the so-called “non-tariff barriers” that an excessive focus on the possibility of a hard border (with the attendant customs duties and checks) seems to forget.
In order to forestall divergences in how goods or services are regulated in different parts of the UK – that is, to create the real “UK single market” we keep hearing about – Westminster would need a general reserved power to lay down common trading rules. Such a power would be comparable to the one most central authorities enjoy in federal states, including, most notably, the “commence clause” in the United States Constitution.
The authority to enforce the rules would likewise need to be centralised. Mere technical points, you might think, but consider one current divergence in how goods are regulated in Scotland vis a vis the rest of the UK: minimum alcohol prices.
We know that EU rules potentially prohibited the Scottish Government’s flagship policy, but would the “UK single market”? In any event, Holyrood would clearly not be the recipient of key powers returning from Brussels, if Westminster’s authority to implement EU rules on trade in goods became the far wider power to make UK replacement rules.
While the UK is in the EU, the British national market is but a part of the European single market - an area in which free movement of goods, services, persons and capital is assured. We underestimate at our peril the extent to which the devolution settlement of 1998 was premised on a European platform of rules followed by Westminster and Holyrood alike.
Brexit upsets that assumption. To date, the work of ensuring unhindered trade between a devolved Scotland and the rest of the UK has been carried out by the EU. If the UK is to leave the European single market and a UK version is to be erected in its place, Holyrood looks set to lose out. To put it another way: while the cake of potential powers will be larger, Westminster looks primed to seize the biggest slice.
Alastair MacIver is a Lecturer in Law at Tilburg University, Netherlands
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereLast Updated:
Report this comment Cancel