UK internal market: The latest irony to come out of Brexit chaos

One of the many ironies thrown up by Brexit concerns is what is now being called “the UK internal market”. We didn’t know it existed, and it didn’t in law, but it simply means a Mars bar made in Slough can be dispatched to Strabane, Swansea or Stirling and happily sold and consumed there, no fuss or bother.

Now the British government wants to enshrine this principle into UK law. It would mean each nation and region of the UK would automatically and mutually recognise one another’s standards and qualifications to a wide degree, so a Welsh architect could move practice to, say, Derby. That sort of thing. Incidentally, it would make new international trade deals easier to negotiate too. There is now a short (four week) consultation on it before Alok Sharma (the current business secretary) drafts the legislation. The devolved administrations hate it.

The UK internal market in fact would operate very much the way the EU single market operates (and operated when the UK was a member). The terms “internal market” and “single market” are colloquially interchangeable, and the renaming may have been to save ministerial embarrassment.

For while Brexiteers used to dismiss the virtues of the EU single market, and stress instead the virtues of stepping away from it to “unleash Britain’s potential” and explore exciting new global opportunities, they now make the same arguments in favour of the UK internal market. When the Scots and Welsh complain that their national powers and rights are being eroded by a lack of democratic sovereignty, they are told to lift their eyes to the wider political and economic advisers of the most successful political union in the world (ie the UK).

Arguably, the UK internal market will be even less democratic than the EU version. In the European Union, the Commission and its trade commissioner are accountable to the EU parliament and the European Council of (elected) national ministers. When the EU trade team conclude a new treaty on trade, every national, and some regional, assemblies must approve it. The EU-Canada deal was held up because the Walloon assembly in Belgium objected to it. The Scottish and Welsh parliaments have no such power, as things stand, and will have to accept whatever comes from London on international trade, and indeed other matters affecting the UK internal market. This will be the case (it seems) even when such decisions are currently devolved to Edinburgh and Cardiff. That is because UK law outranks devolved law, just as EU law used to override British law. The Sewel Convention used to give some assurance that Scottish rights would not be ignored. But when it was invoked over the Brexit legislation, the UK Supreme Court said it had no legal force. In its way it was the kind of thing the EU Court of Justice used to do, infuriating Brexiteers. Now the British courts are angering some Scots.

The position in Northern Ireland is even more tangled because it represents the EU customs union border with the rest of the UK. The more British rules diverge from Scotland, the more checks there will need to be between Northern Ireland and the rest of the UK, affecting UK internal market trade. But those changes to rules can be made in Westminster in defiance of the power-sharing executive at Stormont.

The British government proposes to appoint a panel to arbitrate on some of these issues – but it would be unelected, appointed by Whitehall and unaccountable to anyone... a quango.

So the long and short of it is that yet another constitutional crisis is approaching. The SNP government has said it will not cooperate with the new arrangements. If played out, it would mean the whole apparatus of the Scottish government would be set against implementing British laws seen as illegitimate. Practically speaking it would make British legislation unenforceable, including obligations entered into with other nations via trade treaties. The road to partial UDI (unilateral declaration of independence) and mass civil disobedience in Scotland is clear. That would, of course, be highly divisive in Scotland itself – not all Scottish people favour independence or even devolution.

UK ministers like to play down such dangers. A smoothie such as Mr Sharma insists that the notorious American chlorinated chicken will never fly into Britain, let alone land in Nicola Sturgeon’s local supermarket. Currently, trade (national) and food standards (devolved) collide in the clearest way. One day, under different circumstances, that chlorine-washed bird, or something very like it, might by law be imported (a UK internal market matter) and it would mean the shops had to sell it. There might not be chicken riots on the streets of Glasgow (though they might be fun), but such contempt for Scottish rights may well finally end what we are continually told is the most successful political partnership ever.

The simple answer, which runs well in properly federal constitutions and the EU, is to give devolved parliaments a role in trade talks and a right to ratify agreements – the equivalent of the EU national veto that still applies in some economic areas. But fetishising the Commons and sovereignty as they do, this government cannot bring itself to offer concessions and make necessary compromises. Some, such as Michael Gove and Boris Johnson, obviously hate devolution anyway (see the way they tried to ignore it in the Covid crisis) and long to use the opportunity of Brexit to roll back the powers given away by Tony Blair and David Cameron. But, one way or another, the United Kingdom cannot survive such a series of traumas as now awaits. It will be over, perhaps surprisingly quickly. Quite an achievement for the Conservative and Unionist Party.