THE UK Government’s stance on Scotland’s Deposit Return Scheme suggests it will seek to use post-Brexit rules as a “threat” to devolved legislation, a constitutional expert has said.
The Scottish Government has requested an exemption from the UK Internal Market Act (UKIMA) - legislation introduced after Brexit to ensure smooth trade across the UK – to introduce the recycling initiative.
But minister Lorna Slater has accused the UK Government of seeking to “sabotage” the initiative after it said it could only be granted if glass bottles – a key element - were excluded.
Scotland's scheme is due to start in March next year ahead of other initiatives in UK nations, with glass also excluded from the schemes in England and Northern Ireland.
Kenneth Armstrong, professor of European law at the University of Cambridge, said it had been clear the deposit return scheme (DRS) would trigger the market access principles under the UKIMA.
However he said: “What you are going to see now happening - and this is what is getting really complex - the UK Government is now saying okay we will give you a temporary exclusion while we wait for the other governments in the UK to introduce their rules. But then laying down certain conditions.
“I think that what is happening is the UK Government is using the opportunity of the act to bargain with the devolved administrations to try and achieve outcomes always with the threat that the UKIMA could apply and undermine the effectiveness of regimes that devolved legislatures could put in place.
“So there is a kind of bargaining in the shadow of the act.”
He added: “The UK Government says okay we will give you the [exclusion] but we would like the regimes to look like this. So who is legislating?
“That is the complexity that I can see developing.”
Armstrong, who previously advised Holyrood's Finance and Constitution Committee on the UKIMA, said it meant every time the devolved parliaments try to introduce legislation, they would have to “think twice” about whether it applies.
“That can have various effects – some people describe as a chilling effect, as they may think twice and think is it worthwhile,” he said.
“In terms of timing, the position the Scottish Government has taken is to say well why do we need to wait for the UK Government to come up to speed and legislate on this – why can’t we go ahead and do something we think would be effective and worthwhile doing now?
“They may not want to do that as they think there will be hassle from the UKIMA.”
Aileen McHarg, professor of public law at Durham University, also said the problems surrounding the DRS were “entirely anticipated” at the time legislation to regulate the UK’s internal market was being debated.
But she said it appeared the UK Government has backtracked on accepting divergent approaches across different nations for the deposit return scheme (DRS).
McHarg said the UK Internal Market Act (UKIMA) had handed “substantial power” to the UK Government to determine the effective operation of policies which fall within devolved competence, in terms of impact on internal trade.
She said: “In addition, UKIMA undermines the “common frameworks” process by which the UK and devolved governments are supposed to agree where common approaches to regulation are necessary, and where divergence is acceptable.
“There is no guarantee that an agreement to diverge will lead to a UKIMA exemption being made. In the case of DRS, it appeared to be accepted that there would be divergent approaches – a separate scheme in Scotland, and differences in the operation of the England/Wales/Northern Ireland scheme in Wales.
“However, the UK Government seems to have changed its mind.”
She added: “UKIMA significantly affects the autonomy and effectiveness of devolved law-making.”
Dr Thomas Horsley, reader in constitutional law at University of Liverpool, pointed out that before Brexit, the devolved nations were subject to EU regulations.
But he added: “The political tension in the new context is with the UK Internal Market Act itself - the devolved governments simply don't agree that it is necessary and also (rightly I would say) have concerns about the UK Government's control over the application of the market access principles/ review process.”
In Janaury this year a document published by UK Government stated: "Since waste management is a devolved policy area, it is the responsibility of each nation of the UK to decide on the approach to a DRS that fits its policy needs."
A UK Government spokesperson said: “The Government remains unwavering in its commitment to improving the environment, while also upholding the UK’s internal market.
“The drinks industry has raised concerns about the Scottish Government’s deposit return scheme differing from plans in the rest of the UK, resulting in the Scottish Government reviewing and pausing their scheme earlier this year.
“We have listened to these concerns and that is why we have accepted the Scottish Government’s request for a UK Internal Market (UKIM) exclusion on a temporary and limited basis to ensure the Scottish Government’s scheme aligns with planned schemes for the rest of the UK.
“Deposit return schemes need to be consistent across the UK and this is the best way to provide a simple and effective system.
“A system with the same rules for the whole UK will increase recycling collection rates and reduce litter - as well as minimise disruption to the drinks industry and ensure simplicity for consumers.”
