The controversial Internal Market Bill is heading back to the Commons after it passed its final reading in the House of Lords.
The UK government says the bill will ensure the free flow of goods and services between UK nations after the Brexit transition period ends, but the SNP have questioned its impact on devolution.
An image that has been shared hundreds of times on Facebook and Twitter claims that the bill would mean that “all parts of the UK must have common standards”, so if England wanted tuition fees or prescription charges, Scotland would have to follow suit.
“Internal Market Bill means that all parts of the UK must have common standards so if England insists on tuition fees, so must Scotland. If England insists on prescription charges, so must Scotland.”
Ferret Fact Service looked at this claim and found it to be False.
The Internal Market Bill was passed by the House of Commons on 29 September 2020 by 340 votes to 256. The bill had its third reading in the House of Lords on 2 December and is now expected to pass between the two houses over the coming weeks.
The SNP has consistently claimed that the Internal Market Bill represents an attempt by the UK Government to rip up the devolution settlement in order to snatch power from Holyrood. In September, Scotland’s First Minister Nicola Sturgeon called the bill a “full-frontal assault on devolution”.
The party’s Westminster leader Ian Blackford tabled a cross-party amendment to the bill on the basis that it is “contrary to the established devolution settlement”. That amendment was defeated by 348 votes to 256.
Will the Internal Market Bill impact on devolution?
Professor Nicola McEwen, co-director of the Centre on Constitutional Change, believes the effect the bill could have on the system of devolution is “potentially profound”. This is because it allows for goods and services from one part of the UK to enter another part without having to meet local regulations. This does not prevent devolved parliaments making laws, but it does mean those laws will only apply to goods and services originating in their own jurisdiction.
The bill makes an exception for legislation that is already in force so would not impact on, for example, the Scottish Government’s minimum alcohol pricing regime.
The Law Society of Scotland published a report which looked at potential examples of the mutual recognition principle once the bill is passed. If the Scottish Government wanted, for instance, to introduce a law that required energy drinks to carry a high-caffeine warning it would only apply to drinks produced in Scotland. Without similar regulations in England, goods produced or imported into England could be sold in Scotland without displaying the warning.
However, if the Scottish Parliament wanted to ban sale of energy drinks to under-16s, it would not be within the scope of the mutual recognition principle, as it relates to whom the products may be sold to.
How would this affect tuition fees and prescription charges?
Decision-making on education and health are both devolved to the Scottish Parliament. Using these powers in 2008, the Scottish Government effectively scrapped university tuition fees for Scottish students by abolishing the graduate endowment. In 2011 it abolished prescription charges. This is not the case in England, where tuition fees of up to £11,100 a year and prescription charges of £9.15 per medicine apply.
A key part of the Internal Market Bill is to ensure mutual recognition across all four UK nations. The UK Government says that means a product “that meets relevant regulatory requirements relating to sale in the part of the UK it is produced in or imported into” can also be sold in any other part of the UK “without having to adhere to relevant regulatory requirements in that other part”.
There are exceptions to that rule, however, and prescription medication is one that is specifically highlighted by the Government. “The supply of medication by the NHS to a patient through a prescription would not be covered as it is a sale made by a public authority fulfilling a public function,” it states.
When it comes to tuition fees, Durham University law professor Aileen McHarg, who co-authored a paper on the impact the bill will have on devolution, notes that it is “not entirely clear whether higher education is covered by the market access principles” of the bill. However, she says she does not believe the bill could be used to attack fees.
“The scenario would have to be an English university setting up a campus in Scotland and being prohibited from charging fees,” she says. “I think that would be covered by the non-discrimination principle rather than the mutual recognition principle, so they’d have to show that the rule discriminated against non-Scottish providers, which it doesn’t appear to do. In any case, the remedy would be for the rule to be dis-applied to the English provider, meaning it could still be applied to Scottish providers.”
The UK government universities minister confirmed in parliament that the Internal Market Bill would not “interfere with the Scottish Government’s ability to charge no fees for university students”.
Ferret Fact Service verdict: False
The claim that if England insists on tuition fees or prescription charges Scotland must too is false. Prescription charges are exempt from the scope of the Internal Market Bill, and the UK government has confirmed it would not “interfere” with Scotland’s tuition fee position.
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