Leaving the European single market has become a complicated process. There are many agreements, legal requirements and informal working arrangements which were built up during the 40+ years of UK membership of the EU to unscramble.
large part of the consequential operational detail for trading relations affecting Northern Ireland (and Ireland) are features of the protocol agreed between the UK and the EU. However, alongside the trading agreement built into the protocol, there are at least 166 pieces of EU policy, regulation or shared competence, which must now be superseded after Brexit. These policy areas are currently under discussion as part of the final stage talks between the EU and the UK Government.
Decision making on the adaptation or replacement of the successors to these 166 policy areas has involved the UK Government and the devolved governments in Scotland, Wales and Northern Ireland. What has now become clear is that the four governments have not found a ready agreement on what happens next.
There would be an easy outcome if the governments could agree that, since the 166 policy areas have been administered as part of the Single European Market, they should now become central to an internal UK single market. That would be a controversial proposition. In Scotland, the Scottish Government, speaking not just with support from the SNP, is asking that the 166 policy areas should be determined by answering questions on whether each policy issue might be more appropriately devolved to the territorial administrations.
The Scottish Executive has asserted that decision making should be after an opportunity for inter-government discussion and, hopefully, reaching a consensus. In the Scottish parliament strong words have been used to criticise what is seen as a policy grab to bring more of these policy areas back to Westminster and to deny an opportunity to consider the merits of greater devolution. Scottish ministers are resisting the notion that Westminster can decide, on a UK-wide basis, whether there are suitable options for greater devolution. In fairness, it should be added that there are many policy areas where co-operative working, or common rules, could be agreed (but not unilaterally).
Post-Brexit, these 166 policy areas need coherence and legitimate authority. The UK Government has tabled an analysis to codify the discussion. It suggests:
63 policy areas needing no further action save an agreement to co-operate,
78 policy areas where common rules will be needed with implementation through a concordat which will create a unified body of UK law,
21 policy areas where future legislation may be needed to implement common rules,
Four policy areas where the UK Government believes they should be ‘reserved’ to Westminster subject to discussion (but not necessarily agreement) with the devolved administrations.
Amongst the 63 issues for co-operation are consumer law, the internal energy market and ports.
The 78 includes company law, public procurement, waste management, motor insurance, public health and police admin and co-operation. The 21 needing legislation include recognition of professional qualifications, agriculture, fisheries management and food safety.
The Scottish parliament, mainly from the SNP, has reflected disappointment about both the detailed codification and the inadequate scope for discussion of the merits of the approach by the UK Government.
In particular, Scottish ministers have taken the strongest exception to a proposal that Westminster should reserve to London the implementation of rules on State Aid.
The rules on State Aid have evolved in the context of the EU but are now usually regarded as central to the avoidance of unfair market interference.
The UK Government will argue that, in the competition for the attraction of external investment, the four UK administrations need an agreed rule book or code. In the debate in Edinburgh, strong voices are asking for a greater degree of devolved discretion.
There is little surprise that the post-Brexit debate has identified 166 policy issues that must be resolved. The Scots have been vocal. The debate emerging from Stormont has been surprisingly muted.