Devolution of environment policy in jeopardy

10 Nov 2023

By Kat Jones, Director, Action to Protect Rural Scotland (APRS)

Environmental organisations in the UK recently wrote to the Prime Minister expressing concerns about how the Internal Market Act (IMA), passed in 2020 after Brexit, is negatively impacting environmental policymaking.

The letter was coordinated by APRS in the aftermath of the IMA being used to block Scotland’s deposit return system, with key support from the LINK organisations in Wales, Scotland and England.

This has been quite a challenge for me to get my head around, given the dry and rather arcane subject matter, but it is vital for anyone who cares about good environmental policy to understand the threat the IMA poses to our work in the environment movement.

I hope this blog helps, along with the videos we have produced, with Reloop, on the basics of the IMA.

Any policy that will affect goods and services at the point of sale needs an exemption to the IMA – this obviously affected deposit return but it would also affect such policy measures as single unit pricing, phase out of petrol/diesel cars, ban of disposable vapes, a ban on sale of snares and many other things.

Particularly importantly, especially for environmental campaigners, is that, before Brexit, the EU single market rules allowed for exemptions for environmental and public health policies. There is no such exemption under the IMA.

As Deborah Long, Chief Officer of Scottish Environment Link, said in the press release:

“We have already seen one direct effect of the Internal Market Act, when it was used by UK Ministers to impose serious restrictions on the Scottish deposit return system, legislation which was previously accepted as fully devolved to Scotland. Such a move would not have been possible prior to Brexit, given the exemptions available for environmental and public health policy within the EU single market rules.

“Unless these elements are amended or repealed, it seems likely that this scenario will repeat itself. Devolution has worked as a proving ground for positive policy measures, but without those changes, we will be left with a race to the bottom on environmental and public health standards.”

Prior to Brexit, devolution allowed Scotland, Wales and Northern Ireland to pioneer new policies which were then picked up across the UK. The most famous examples are the carrier bag charge (initiated in Wales and then adopted across the UK) and the ban on smoking in public places (initiated in Scotland and then similarly adopted across the UK). That pipeline of innovation has now been stifled, as the collapse of the Scottish deposit return system shows, and it is not an exaggeration to say that devolution itself is in jeopardy as far as environmental policy goes.

The first principle of devolution is that anything not reserved to Westminster in the relevant legislation is for the devolved institutions to legislate on. The Internal Market Act undermines that principle and has added uncertainty for institutions and businesses on what can actually be legislated.

Our aim, alongside the LINKs, is to raise awareness of the impacts of the IMA on environmental policy-making and ensure that the manifestos of the political parties for the next UK General election contain plans to amend it.

With this in mind we have, in addition to the letter to the PM, written to leaders from all the UK political parties, in UK and developed nations, sent a copy of the letter, and requested to meet.

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Further information about the IMA can be found on the APRS website

APRS and Reloop produced a series of video explainers on what the IMA means for policymaking.

The open letter highlights that:

  • the Act has led to significant hurdles to progress on environmental issues, and added bureaucratic overheads to policy-making in every part of the UK;
  • it undermines the ability of the Scottish and Welsh institutions, and Northern Irish, as and when the current suspension ends, to operate in areas which were clearly devolved, as with deposit return;
  • the timescale for devolved institutions to begin the formal process that can lead to an exemption is unclear – in particular, does it begin before or after the Scottish Parliament or Senedd passes relevant legislation?
  • the way the Act is structured means that devolved institutions do not have certainty about policy-making even when Ministers at all levels believe an exemption is not required: third parties, like businesses, could still launch challenges under it; and
  • provisions made prior to the passage of the Act are protected (such as minimum unit pricing), but changes to those provisions are only protected if they are not “substantive”, a term which is not properly defined.

Read the open letter

Download the open letter

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