The UK government has published a white paper aimed at protecting the flow of goods and services across the UK at the end of the Brexit transition period.

The white paper 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 relevant to international obligations entered into by the UK government: being able to “deal with regulatory barriers within a country” enhances the potential “to develop and implement ambitious trade deals”.

In a response to a consultation on the white paper, the Faculty said it was 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.”

The Faculty noted 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.” It suggested 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,” said the Faculty.