Doubts whether public health measures like minimum pricing of alcohol could be brought in by the devolved Parliament under the proposals for a UK internal market have been expressed by the Faculty of Advocates.
In its response to the consultation on the UK Government's white paper on the UK Internal Market, Faculty suggests that an additional principle should be stated to ensure no restriction on devolved powers already conferred.
The white paper is aimed at protecting the flow of goods and services across the UK at the end of the Brexit transition period.
It proposes to enshrine in law two principles: mutual recognition and non-discrimination. Mutual recognition will require that an item produced in any part of the UK and capable of sale there can be sold in any other part. Non-discrimination will stop one part of the UK treating goods or services from another part of the UK less favourably than its own goods or services.
Such internal arrangements are also viewed as enhancing the UK Government's ability "to develop and implement ambitious trade deals".
In its response, Faculty says it is instructive to consider how a measure which a devolved administration considered necessary on the basis of the health of citizens in that part of the UK could be implemented in future.
“The most controversial issue in Scotland in recent years concerning the interaction of freedom of trade with restrictions based on public health has been the minimum pricing of alcohol,” the Faculty stated.
“It is not clear to us whether a like measure, considered to be justified on grounds of health, could be implemented under the regime proposed in the White Paper, combined with the provisions of the current UK Trade Bill.”
Another example it suggests is if a devolved administration were to decide to impose tighter controls on the amount of sugar in soft drinks than applied in the rest of the UK.
Faculty notes a stated intention in the white paper to respect the devolution settlement, and the UK Government’s position that "every decision a devolved administration could make before exit day, they can make afterwards", and that frameworks will maintain, as a minimum, the same degree of flexibility for tailoring policies to the specific needs of each territory as was afforded by EU rules.
It suggests a third principle be included in the white paper to secure those aims.
"This would ensure the continued ability of the devolved administrations – governments and legislatures – to adopt measures which, albeit they may have an effect on trade, are a proportionate means of addressing a different goal, such as the maintenance or improvement of public health within their jurisdiction", Faculty observes.
"The reach of such a principle would benefit local solutions in the field of services as well as in relation to goods."
If geographical origins of particular goods are to continue to be protected, as the Government says it intends, some departure from the principle of non-discrimination will in any event be necessary, Faculty believes.
And it questions the white paper's apparent assumption that building regulations, for example, should be the same across the UK, when Scotland has had its own regulatory scheme since long before devolution.
Professional services and qualifications is another area where Faculty feels it necessary to highlight the separate Scottish position.