The Scottish government has threatened to defy proposed UK legislation allowing Westminster unilaterally to set food and environmental standards, setting the stage for the biggest constitutional stand-off between London and Edinburgh since the 2016 Brexit referendum.
Michael Russell, Scotland’s cabinet secretary for constitutional affairs, told the Financial Times that the Scottish National party government was prepared to fight in the courts over legislation that would give London unilateral control over the UK “internal market”.
The bitter dispute over the Conservative UK government’s efforts to ensure it has a free hand in post-Brexit trade negotiations with other countries highlights the far-reaching constitutional implications of leaving the EU.
One person familiar with the proposed UK internal market bill said it would create powers to enable the Westminster government to force Scotland and Wales to accept whatever new standards on food, environment and animal welfare were agreed in future trade agreements.
Food safety, agriculture and many aspects of the environment are policy areas overseen by the devolved administrations in Edinburgh and Cardiff, but the UK government wants to have the final say on issues previously decided in Brussels.
Mr Russell said the Scottish administration accepted the need for “common frameworks” across the UK and had been working with British government officials to try to agree them in contested policy areas.
But he went on to accuse British ministers of “bad faith” in proposing a statutory framework for the UK internal market that would allow them to “impose what they like”.
“We do not accept that this is a legitimate way of operating within devolution,” said Mr Russell. “[If] they pass legislation . . . then we will have no intention of implementing that and they would have to essentially go to court to force its implementation.”
That could pave the way for a court battle over a UK government attempt to curb the Scottish parliament’s powers in the run-up to Holyrood elections in May 2021 that opinion polls suggest the pro-independence SNP is on course to win by a large margin.
This highlights how the planned UK internal market bill could unleash the most significant tensions between London and Edinburgh since the Brexit referendum, when Scotland voted to stay in the EU.
Edinburgh has warned that it would resist the imposition of a Westminster body outlined in the legislation that could block any Scottish parliament bill that the Westminster government judged would interfere with the internal market.
Welsh as well as Scottish ministers are concerned by proposals in the legislation for a “mutual recognition” regime that could force them to accept controversial products such as chlorinated chicken from the US.
The UK government has pledged to defend food and environmental standards in future trade negotiations, but farming, environmental and animal welfare groups are alarmed at its refusal to enshrine those promises in law.
The UK internal market bill, which is being devised in the government’s business department with support from the international trade department, is raising concerns in Whitehall because of the speed of the process.
A so-called white paper on the bill, which is still being finalised, is expected in the coming weeks, and the government plans to rush through the legislation in the autumn.
Trade experts said it had long been recognised that negotiating trade deals on behalf of the entire UK could create friction between the Westminster government and the devolved administrations, which want to maintain strict EU rules on matters such as genetically modified crops and safe levels of pesticide residues.
The person familiar with the UK internal market bill said that while there would be “warm words about high standards” in the legislation, the business department — backed by Number 10 — was clear that the Westminster government’s hands could not be tied in future trade negotiations.
“The net effect is that whatever — and that means whatever — happens to food standards as a result of signing [free trade agreements], the Scots and Welsh will have to accept those lower standard products on to their market,” added this person.
The UK internal market bill and the UK government’s plans to negotiate trade deals look set to create tensions with the devolved administration in Cardiff.
“Their mindset is that they want to police divergence by the devolved governments but it is more likely to be English divergence that causes difficulty,” said one senior Welsh government figure.
“Using primary legislation with mutual recognition is a sledgehammer that operates in only one direction.”
The UK government said it was “committed to protecting the integrity of our internal market from any future barriers that could harm trade and destroy people’s livelihoods”.
“We have sought to agree a shared approach to the UK internal market with the devolved administrations. Unfortunately, however, the Scottish government voluntarily withdrew from this process over a year ago.”
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