Of mousetraps and men

The spat between the UK and Scottish Governments over banning sales of glue traps for rodents reveals another problem ticking away for the next government: what to do about the UK Internal Market Act

Over Easter, a row has blown up between the UK and Scottish Governments over rules on the sale of mousetraps. This may sound trivial¹: but anyone who is familiar with trade issues, EU law, or indeed the American Revolution will realise that trade disputes that sound insignificant can result in major blow-ups, not least when they reveal underlying issues of power and self-determination.

Regulation of glue traps

The background to the dispute is differing approaches by the UK Government and Parliament (here legislating for England) and the Scottish Government and Parliament (legislating, obviously, for Scotland) to the regulation of glue traps for catching rodents. In England, the Glue Traps (Offences) Act 2022 - an Act, of course, of the UK Parliament - prohibits the use of glue traps to catch rodents (section 1) but does permit exceptions, under a licence granted by the Secretary of State, where the traps are used to protect public health or safety and there is no other satisfactory solution (section 2). In Scotland, however, and no doubt inspired by Scotland’s greatest poet’s affection for a mouse, a stricter approach is preferred in order to protect the sleeket, cowran, tim’rous beasties: sales of glue traps will simply be banned.

This, you might reasonably suppose, is supposed to be what devolution is about: if the Scottish Parliament, having in mind Scottish views about the protection of our rodent “earth-born companions/and fellow mortals”, wants to take a stricter view in an area of law-making that is not reserved to Westminster, then, surely, it can?

However, over Easter, the Scottish Government published a letter it had written to the UK Secretary of State for Environment, Food and Rural Affairs complaining that the UK Government was planning to “use the [UK Internal Market Act 2020] – ostensibly a legal regime to protect intra-UK trade – to effectively overturn a policy approved by the Scottish Parliament.”

UKIMA

So, what is the UK Internal Market Act 2020 (UKIMA)? The best way of understanding it is to read the book I co-wrote with colleagues in Chambers on it, available at all good booksellers for a modest price. But I’m going to assume you don’t want to do that, at least right now.

The “good enough for now” explanation of it runs like this. All federal (or federal-ish) systems have to think about how to manage the trade-off between regional/national/State/provincial autonomy and maintaining an integrated market in which there aren’t huge regulatory differences leading to internal trade barriers. (Anyone who has ever studied EU law will also recognise the same issue in the extensive case-law under the rules on free movement of goods and services.)

When devolution came to the UK, however, nothing was done about that issue: essentially because, as a Member State of the EU, the problem was solved for the UK by EU law. If the Scottish Government wanted to pass legislation banning, or restricting, the sale of something lawfully sold in Germany, it had to be able to justify that decision on the basis of EU law on free movement of goods (essentially, on the basis that is was a proportionate response to a real public interest issue) - and also had to comply with reams of detailed legislation on harmonisation in particular sectors (such as cosmetics or food safety). EU law prevented the Scottish Government (and, of course, the UK government acting for England) from unduly disrupting the EU internal market - and that meant, in practice, that it could not disrupt the UK internal market either.

Then came Brexit, and the removal of all this EU law. That created a problem: differing regulatory choices in areas now no longer governed by EU law could throw up real trade barriers across the Tweed or Offa’s Dyke, disrupting the UK internal market².

UKIMA seeks to manage that problem - ironically, by using, without any acknowledgement, legal techniques derived from EU law on free movement of goods and services - though, as we shall see, in somewhat altered form.

Despite the fact that it engaged the Sewel convention (recognised in section 28(8) of the Scotland Act 1998), UKIMA was passed without the consent of the devolved Parliaments. It is also a “protected statute”, which means that devolved legislation cannot amend or repeal it.

For present purposes, we need to focus on the provisions in UKIMA that create the “mutual recognition principle” for goods: essentially, that principle, found in section 2 of UKIMA, is that a good lawfully produced in, or imported into, one part of the UK, and lawfully sold there, should be able to be sold lawfully in other parts of the UK without having any “relevant restriction” imposed on it (a “relevant restriction”, by section 3, includes an outright ban on sale as well as requirements imposing conditions on its sale or such things as registration requirements). Anyone familiar with EU law will see the echos here of Cassis de Dijon³.

The “sting” of section 2 is that, where a good has been lawfully produced in, or imported into, one part of the UK and is lawfully sold there, those goods can be sold in another part of the UK as if the “relevant restriction” did not apply to them: section 2(3). Section 2(3) does not stop a “relevant restriction” applying in one part of the UK to goods produced in that part: but, of course, in practice no part of the UK is going to want to ban or restrict sales of products produced on its territory if sales of the same goods but manufactured on the other side of the Tweed or Offa’s Dyke, or outside the UK altogether, have to be permitted without that restriction.

Where UKIMA is stricter than EU law is that, while EU law allows Member States the ability to justify (and hence enforce) restrictions of this kind on a range of public interest grounds (including animal welfare) - as long as they are proportionate and the justification is sufficiently supported by evidence - UKIMA allows very few justifications: the ones that there are can be found in Schedule 1 and essentially consist of prevention of pests and diseases and a few others⁴.

Why UKIMA is a problem here

Coming back to the issue of glue traps, the problem for Scotland is that, while glue traps are lawfully sold in England the ban on sales north of the Tweed is, for the reasons I have explained, ineffective and pointless. For the moment, therefore, the Scottish Government’s best-laid scheme for regulation has rather gang agley.

What the Scottish Government tried to do is to persuade the UK Secretary of State to use his powers under section 10(2) and (3) UKIMA to add a paragraph to Schedule 1 taking restrictions on the sale of glue traps out of the scope of section 2. However, he has refused to do so, on the basis that he did not think that banning the sale of glue traps was the right approach.

That stance reveals the underlying constitutional flaws in UKIMA. Those are, first, as I have already noted, that (in comparison to EU law) it is far more restrictive: once a product is lawfully on sale in any part of the UK, the grounds on which another part of the UK can restrict its sale are very limited. The way in which that problem is alleviated is that the UK Secretary of State has wide powers to allow exemptions: but that power reveals the second flaw, namely that, far from being neutral across the different nations of the UK, it applies asymmetrically.

That can be seen by imagining that the problem here was the other way round, and that Scotland was content to permit sales but the UK government, acting for England, wanted to ban them. In that case, the UK (English) Secretary of State could either (a) use section 10(2) and (3) powers to take the ban outside the scope of section 2 or (b) insert a provision in the legislation creating the ban (passed by the UK Parliament) that disapplied UKIMA. Either way, UKIMA is effectively disapplied and English regulation can go ahead unhindered by it. In contrast, neither of those options are open to the devolved governments or parliaments: all they can do is ask the UK Secretary of State to intervene - which he does not have to do.

Issues of principle

That is why the current spat, over (with apologies to mice) a relatively minor item of regulatory divergence, is potentially significant: it reveals what is, from the point of view of the devolved governments, a serious flaw in the devolution settlement. UKIMA was imposed on them in breach of the Sewel Convention, and then, in practice, reduces their regulatory options while imposing little constraint on the UK government acting for England. That is a gift to a party, such as the SNP, that wishes to promote independence by highlighting the vulnerability of devolution, and Scots’ ability to decide such questions for themselves, to “muscular unionism” imposed by a Conservative government in London.

An’ forward tho’ I canna see: what is to be done?

Labour’s position on this is likely to be influenced by the election result in Scotland and have an eye to the 2026 Holyrood elections. But it will also be influenced by the Labour Welsh Government, which has consistely opposed UKIMA.

One obvious reform is to widen the Schedule 1 grounds on which restrictions may be imposed despite the mutual recognition principle: another more complicated option would be to make exercise of the section 10(2) power a matter for co-decision between the UK and devolved governments rather than reserved to the Secretary of State. But a lot here depends on the extent to which Labour wants to open up the devolution settlement more generally.

In the meantime, one possible outcome of this spat is that the courts become involved. The Welsh Government sought, in 2021, to get the courts to declare that the provisions that made UKIMA a “protected enactment” were ineffective. As summarised by the Court of Appeal, the argument was as follows: -

The appellant [the Welsh Government] contends that the issue is solely one of statutory construction as one statute, UKIMA, appears to amend the earlier statute, [Government of Wales Act 2006: “GoWA”], but has not done so expressly or clearly. Section 54(2) of UKIMA has the effect of extinguishing the practical effect of devolved competence in areas which include food standards and environmental protection. The question is whether the Senedd retains any competence to legislate within the mutual recognition principle identified in Section 2 UKIMA. The construction is concerned with the interaction of UKIMA and GoWA, and is not reliant on any putative piece of Senedd legislation.

It is submitted that the effect of Section 2 UKIMA is that any Act passed by the Senedd which imposes restrictions on things sold in Wales can be passed but the provisions are disapplied in respect of sales relating to products which were produced in or imported into a UK territory other than Wales. There is therefore a power to legislate in Wales but not to enforce the legislation in Wales, insofar as it contradicts Section 7B of UKIMA. Section 7B does not formally amount to a reservation but the effect of Section 2 and Section 54(2) UKIMA and Section 108(4) GoWA renders the passing of any legislation in that field unenforceable therefore there is no legislative power. Such provisions would breach the rights of Welsh producers and importers as under Article 1 Protocol 1 of the ECHR, read with Article 14, they would be disadvantaged in that they would be subject to Welsh legislation but other producers in the UK would not be so affected.

It is the appellant's case that an important and material distinction exists between restrictions in Schedule 7B [to] GoWA and reservations in Schedule 7A [to] GoWA. The UK Parliament is not to be taken to have introduced a reservation in Schedule 7A [to] GoWA by imposing a new restriction in Schedule 7B [to] GoWA (UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill [2018] UKSC 64, [2019] AC 1022 [51]). A restriction introduced into Schedule 7B [to] GoWA cannot impliedly amend Schedule 7A [to] GoWA, as GoWA is a constitutional statute. The legality principle operates as a tool of statutory construction to preclude Section 54(2) UKIMA impliedly amending the ambit of devolved competence in GoWA other than by the use of express statutory language (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 [62]-[63]).

Interesting though they are, the Court of Appeal refused to rule on those arguments, on the ground that the point would be better determined not in the abstract but in the context of a particular case. A particular case has now arisen: and we may see the matter coming back to the courts in a way that they cannot avoid deciding.

1. Though I don’t want to minimise the animal welfare issues here: glue traps are widely regarded as cruel and have been condemned by animal charities (including the RSPB, as birds can be caught in them).

2. It is worth remembering that unfettered access to England’s market had been a key driver of Scotland’s decision to pass the Act of Union in 1707: anyone involved in post-Brexit debates on “access to the internal market” and the trade-off between sovereignty and easy access to neighbouring markets will find much that is familiar in reading accounts of that debate in 1707.

3. Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, in which the Court of Justice struck down a German law precluding the sale of cassis which failed to contain enough alcohol (yes, you read that right) despite the fact that it was lawfully sold in France: it rejected, as implausible, German arguments trying to justify that restriction on health grounds.

4. One reason why more issues have not blown up under UKIMA is that it applies only to restrictions imposed after it came into force: so pre-existing restrictions are effectively exempt.